K 


••.>  .•> 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


.NCH 

CALIFORNIA 
ARY 

-ES.  CALIF. 


STATE  AND  MUNICIPAL 

GOVERNMENT    IN    THE 

UNITED  STATES 


EVERETT  KIMBALL,  Ph.D. 

PROFESSOR  OF  GOVERNMENT,  SMITH  COLLEGE 


GINN  AND  COMPANY 

BOSTON     .     NEW   YORK     •     CHICAGO     •     LONDON 
ATLANTA     •     DALLAS     •     COLUMBUS     •     SAN    FRANCISCO 


-370  O  h 


COPYRIGHT,  1922,  BY 
EVERETT  KliMBALL 


ALL  RIGHTS   RESERVED 
422.1 


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(,INN    AM)  CilMI'/Wi    •   lia>- 
I'RIETORS  •  BOSTON  •  U.S.A. 


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PREFACE 

In  spite  of  the  importance  and  interest  of  international  and 
national  questions  of  policy  and  in  spite  of  the  rapidly  widening 
sphere  of  federal  legislation  and  administration  the  life  of  an 
American  citizen  is  affected  more  often  by  the  agencies  of  local 
government  than  by  those  of  the  national  government.  Under 
the  protection  of  the  Federal  Constitution  the  life  and  property 
of  the  citizen  are  governed  and  protected  by  state,  not  federal, 
laws.  In  his  political  capacity  the  citizen  takes  part  in  both 
the  federal  and  the  local  government  in  accordance  with  state 
regulations.  Acting  under  the  state  laws  are  the  particular 
political  units  in  which  the  citizen  may  reside — the  county, 
^  city,  or  town.  To  the  authorities  of  these  the  citizen  most  fre- 
"V  quently  looks  for  governmental  support  and  regulation.  Yet 
r\  these  local  bodies  are  distinctly  subordinate  to  and  created  by 
the  authority  of  the  state  and  are  supervised  and  regulated  by  it. 
It  is  the  purpose  of  this  book  to  discuss  the  organization, 
the  distribution  of  powers  and  functions,  and  the  operation  of 
these  agencies  of  local  government.  Other  books  have  dealt 
with  state  government  and  state  administration  or  with  munici- 
pal government  and  municipal  administration,  but  this  book 
covers  both  state  and  municipal  government,  treating  the  two 
as  a  single  manifestation  of  local  government.  With  this  in 
mind  the  book  has  been  divided  into  five  parts.  In  Part  I  the 
federal  system  and  the  state  constitutions  as  the  fundamental 
basis  of  local  government  are  discussed.  Part  II  deals  with  the 
political  system — the  electorate  in  theory  and  in  action,  in 
primaries,  in  election  campaigns,  and  in  its  direct  action  in  the 
use  of  the  initiative,  referendum,  and  recall.  Part  III  deals  with 
state  government — the  different  organs  and  the  functions  which 
these  organs  perform.  State  administration,  which  is  rapidly 
being  extended  both  directly  and  through  the  supervisory 
power  of  the  state,  is  discussed  in  its  various  manifestations. 

iii 


iv         STATE  AND  MUNICIPAL  GOVERNMENT 

Three  chapters  in  this  part  are  devoted  to  the  legal  system 
and  the  operation  of  the  state  courts.  In  Chapter  XIII,  The 
Legal  System  of  the  States,  I  have  attempted  to  describe  and 
define  very  briefly  some  legal  principles  and  terms.  Strictly 
speaking,  the  propriety  of  this  chapter  in  a  book  on  govern- 
ment might  be  questioned,  but  experience  has  shown  that  stu- 
dents are  both  ignorant  of  and  curious  regarding  the  topics  here 
discussed.  Part  IV  deals  very  briefly  with  county  and  town 
government.  I  have  deliberately  reduced  this  discussion  to  its 
lowest  terms  for  several  reasons.  Not  the  least  compelling  is 
the  limitation  of  space,  but  more  important  than  that  is  the 
fact  that  many  of  the  functions  of  the  county  and  town  are 
performed  by  the  state  or  by  the  city  or  by  both,  and  it  has 
seemed  better  to  study  and  explain  these  functions  in  the  dis- 
cussion of  state  or  of  municipal  government.  Again,  many  of 
the  officials  of  the  county  are  really  state  officials  enforcing 
state  laws.  Thus,  for  example,  the  county  or  prosecuting  at- 
torney is  fully  discussed  in  the  chapters  on  the  organization 
of  the  state  courts  and  but  briefly  mentioned  in  the  chapters 
on  town  and  county  government.  In  like  manner  both  the 
counties  and  the  cities  are  engaged  in  the  construction  and 
upkeep  of  roads,  but  the  construction  of  streets  is  treated  in 
the  section  on  municipal  government.  While  this  organization 
is  somewhat  of  a  departure,  experience  has  shown  that  it  helps 
the  student  in  handling  the  complicated  body  of  fact  involved. 
Part  V  deals  with  municipal  government.  Here  I  have  tried  to 
describe  the  development  of  municipal  government,  to  discuss 
the  characteristics  of  cities  and  their  relation  to  the  state.  In 
this  section,  as  in  the  section  on  county  government,  I  have 
been  able  to  treat  the  political  organization  briefly,  inasmuch 
as  political  parties  and  machines,  the  initiative  and  the  refer- 
endum, have  been  discussed  in  Part  II.  Three  chapters  are 
devoted  to  the  different  types  of  city  government  and  four 
chapters  to  the  functions  the  city  performs. 

I  cannot  pretend  to  present  anything  original  or  novel.  In 
fact  I  have  attempted  to  confine  myself  to  an  exposition  of  the 
existing  institutions.  I  have  greatly  profiled  by  and  freely  used 
the   treatises   in    these    various   fields,   particularly    those   of 


PREFACE  V 

Professors  Holcombe  and  Mathews  in  state  government  and 
Professors  Fairlie,  Munro,  and  McBain  and  President  Goodnow 
in  municipal  government.  In  general  I  am  in  agreement  with 
their  conclusions,  and  only  after  a  fresh  reading  of  the  sources 
and  further  study  have  I  ventured  to  disagree.  I  have  fre- 
quently cited  these  authors  in  order  that  students  might  easily 
find  more  extended  discussions. 

In  dealing  with  forty-eight  different  states  and  with  all  the 
municipalities  in  the  United  States  the  opportunity  for  error 
and  misstatement  is  great.  I  have  tried  to  discover,  if  possible, 
what  is  the  normal  institution,  method,  or  practice  and  explain 
that.  Where  there  are  sharply  marked  divergences,  those  which 
seemed  most  interesting  or  typical  have  been  explained,  but  I 
have  not  attempted  to  record — either  in  the  text  or  footnotes 
— the  peculiar  practice  and  the  particular  form  which  an 
institution  might  take  in  each  state  or  city. 

In  addition  to  the  authorities  mentioned  above  I  wish  to  ex- 
press my  grateful  acknowledgments  to  Professor  J.  M.  Mathews, 
of  the  University  of  Illinois,  who  read  the  proof  of  Parts  I,  II, 
and  III,  and  by  his  valuable  suggestions  greatly  improved  my 
text ;  to  my  colleague.  Miss  Alice  M.  Holden,  of  the  Smith  Col- 
lege faculty,  who  has  read  the  entire  manuscript  and  the  proof 
and  prepared  the  index;  and  to  Miss  Cynthia  W.  Eastwood, 
who  has  aided  in  the  preparation  of  the  text,  assisted  in  the 
reading  of  the  proof,  and  verified  the  references  and  quotations. 
But  for  all  statements  of  fact  and  opinion  I  am  responsible. 

EVERETT  KIMBALL 


CONTENTS 

PART  I.    THE  CONSTITUTIONAL  BASIS  OF  STATE 
GOVERNMENT 

PAGE 
CHAPTER  I.    THE  NATURE  OF  THE  AMERICAN  STATE      ...       3 

The  political  importance  of  the  states.  Variations  of  states.  Simi- 
larities of  states.  The  states  bodies  politic.  Federalism.  Prohibi- 
tions upon  the  states.  Obligations  imposed  upon  the  states.  Powers 
reserved  to  the  states.  The  police  power.  Federal  supremacy. 

CHAPTER  II.    STATE  CONSTITUTIONS 18 

Importance  and  origin  of  state  constitutions.  Chief  provisions 
of  early  state  constitutions.  Fundamental  principles  of  state  con- 
stitutions. Classification  of  state  constitutions.  Contents  of  a 
typical  state  constitution.   Constitutional  amendment  and  revision. 


PART  II.   THE  POLITICAL  SYSTEM  OF  THE  STATES 

CHAPTER  III.    THE  ORGANIZATION  OF  THE  ELECTORATE        .     39 

Definition  of  the  electorate.  Original  restrictions  on  the  suffrage. 
Present  qualifications  for  the  suffrage.  Disqualifications.  Election 
districts.  Definitions  of  a  political  party.  Functions  of  a  party. 
Organization  of  a  party.  Party  conventions.  Discussion  of  the 
convention  system.  The  machine.  Tammany  Hall.  Why  party 
organizations  sometimes  become  machines. 

CHAPTER  IV.    THE  ELECTORATE  IN  ACTION 61 

Registration.  Functions  of  the  primaries.  Organization  of  the 
primaries.  Procedure  in  primaries.  Party  tests.  Merits  and  faults 
of  the  primary  system.  The  direct  primary.  Open  and  closed 
primaries.  Nonpartisan  primaries.  The  effect  of  the  direct  primary. 

CHAPTER  V.    THE  CAMPAIGN 77 

Definition  of  a  political  campaign.  Management  of  the  campaign. 
Campaign  methods.  Use  of  money  in  campaigns.  Sources  of 
party  funds.  Regulation  of  the  use  of  money  in  campaigns. 
Election  laws.  The  ballot.  Ballot  reform.  The  short  ballot.  Absent 
voting.    Preferential  voting.    Proportional  representation. 

vi 


CONTENTS  vii 

PAGE 

CHAPTER  VI.    THE  INITIATIVE,  REFERENDUM,  AND  RECALL     105 

Definitions  and  distinctions.  Common  features  of  the  initiative. 
The  referendum.  The  effect  of  the  referendum  upon  the  electo- 
rate, political  parties,  the  machine,  the  ballot.   The  recall. 

PART  III.    ORGANIZATION  AND  FUNCTIONS  OF 
STATE  GOVERNMENT 

CHAPTER  VII.    THE  STATE  GOVERNOR 131 

The  executive  department.  The  provincial  governor.  The  state 
governor:  election,  term,  removal.  The  powers  of  the  gover- 
nor. Civil-service  laws.  Martial  law.  The  conference  of  gover- 
nors.   The  strong  governor.    "The  new  role  of  governor." 

CHAPTER  VIII.    STATE  ADMINISTRATION I49 

Characteristics  and  composition  of  the  executive  departments. 
The  relation  of  the  heads  of  departments  to  the  governor.  State 
boards  and  commissions.  Classification  of  boards  according  to 
services  and  powers.  Internal  organization  of  state  boards. 
Types  of  departmental  organizations.  Relation  of  commissions 
to  other  departments.  Reorganization  of  state  administrative 
systems. 

CHAPTER  IX.  FUNCTIONS  OF  STATE  ADMINISTRATION  .  .  168 
The  enforcement  of  law.  Difficulties.  Instruments.  The  adminis- 
tration of  education.  State  authorities.  Compulsory  education. 
Free  textbooks.  Normal  schools.  State  universities  and  libraries. 
State  supervision  of  charities.  Correctional  institutions.  Public 
health.  Labor-law  administration.  Agriculture.  Regulation  of 
corporations.  Public  works.  Finance  and  taxation.  Miscellaneous. 

CHAPTER  X.    THE  STATE  LEGISLATURE i94 

The  importance  of  the  state  legislature.  Omnipotence  of  the 
state  legislature.  Limitations  upon  state  legislatures  in  the  Fed- 
eral Constitution.  Limitations  in  state  constitutions.  Compo- 
sition of  state  legislatures.    Legislative  apportionment. 

CHAPTER  XL    THE  LEGISLATURE  AT  WORK 207 

The  organization  and  character  of  the  state  legislature.  The 
officers.  Committee  system.  The  legislative  problem.  The  lobby. 
Bill-Drafting  Bureau.  Legislative  procedure.  Financial  legisla- 
tion. The  influence  of  the  organization  in  legislative  procedure. 
The  perversion  of  legislative  action.  The  legislature  and  consti- 
tutional amendments.  The  effect  of  the  initiative  and  referen- 
dum on  the  legislature. 

CHAPTER  XII.    STATE  FINANCE 225 

Importance  of  state  finance.  Sources  of  state  revenue.  Kinds 
of  taxation.  Constitutional  restrictions  on  state  taxing  power. 
State  expenditures.  Financial  legislation.  State  budget  systems. 
The  state  debt. 


viii      STATE  AND  MUNICIPAL  GOVERNMENT 

PAGE 

CHAPTER  XIII.    THE  LEGAL  SYSTEM  OF  THE  STATES     ...     238 
Sources  of  state  law.  Statutory  law.  International  law.  Common 
law.   Equity.    Rights  of  persons  and  property.    Criminal  law. 
Torts.  Contracts.  Domestic  relations.  Partnerships  and  corpora- 
tions.   Remedies. 

CHAPTER  XIV.  THE  JUDICIAL  SYSTEM  OF  THE  STATES  .  ,  268 
Importance  and  functions  of  state  courts.  Justices  of  peace. 
Intermediate  courts.  Probate  courts.  Appellate  courts.  Special 
courts.  The  relation  of  the  state  courts  to  the  federal  courts. 
The  structure  of  the  courts.  Choice  and  term  of  judges.  Removal. 
Recall  of  judicial  decisions.    Other  court  officers.    The  jury. 

CHAPTER  XV.  THE  PROCEDURE  OF  THE  COURTS   ....  291 

Criminal  cases.  Civil  cases,  common-law  procedure.  Equity 
procedure.  Appeals.  Power  of  the  courts  to  declare  statutes 
unconstitutional.  Judicial  control  of  administration.  The  courts 
as  agents  of  self-government. 

PART  IV.    COUNTY  AND  TOWN  GOVERNMENT 

CHAPTER  XVI.   THE  EVOLUTION  OF  LOCAL  GOVERNMENT  IN 
THE  UNITED  ST.-^TES 309 

The  English  basis  of  local  government  in  the  United  States.  Local 
government  in  America.  The  county  type.  The  Southern  parish. 
The  New  England  town  system.  The  mixed  system.  Extension 
of  systems  of  local  government.  Recent  developments  in  local 
government.    Extent  of  local  autonomy  in  the  United  States. 

CHAPTER  XVII.    THE  COUNTY 317 

General  characteristics.  County  powers  and  functions.  Gov- 
ernment of  the  county.  The  county  board.  Administration  of 
justice.    Other  county  officers. 

CHAPTER  XVIII.    MINOR  DIVISIONS  OF  LOCAL  GOVERNMENT    333 
The  New   England   town.    The   town    mcetins.    Town  officers. 
Townships  in  the  central  states.    County  districts  in  the  South 
and  West.   Villages  and  boroughs. 

PART  V.    MUNICIPAL  GOVERNMENT 

CHAPTER  XIX.    CHARACTERISTICS  OF  ATNIERICAN  CITIES       .     34 S 
Definition   of  a   city.     Reasons   for  existence   of   cities.     Area. 
Population.    Sources    of    the    increase   of    population.    Charac- 
teristics of  urban  population.    The  moral  standards  of  the  city. 
Humanitarian  movements  in  cities. 

CHAPTER  XX.    THE  DEVELOPMENT  OF  MUNICIPAL  GOVERN- 

MK.\T  IN  THE  UNITED  STATES 3S9 

The  colonial  period.    Municipal  development  from  1775  to  1920. 


CONTENTS  ix 

PAGE 

CHAPTER  XXI.   THE  RELATION  OF  THE  CITY  TO  THE  STATE     374 

The  city  corporation.  Legal  position  of  the  city  in  the  state. 
The  city  charter.  Powers  of  the  city.  Liabilities  of  cities.  Attitude 
of  the  legislature  toward  cities.  The  optional  charter  system. 
Regulated  special  legislation.  Municipal  home  rule.  The  politi- 
cal relation  of  the  city  to  the  state.  Fields  in  which  state  con- 
trol is  properly  exercised.   Methods  of  state  control. 

CHAPTER  XXII.    THE  CITY  AS  A  POLITICAL  UNIT      ....     393 

The  municipal  electorate.  The  municipal  electorate  in  action. 
Municipal  parties.  Fusion.  The  initiative,  referendum,  and  recall. 

CHAPTER  XXIII.   TYPES  OF  MUNICIPAL  ORGANIZATION-THE 
MAYOR-AND-COUNCIL  TYPE        409 

The  city  council.  Development  of  the  office  of  mayor.  Elec- 
tion, term,  qualifications.  Characteristics  of  American  mayors. 
Legislative  powers  of  the  mayor.  Administrative  powers.  Mis- 
cellaneous powers.   Present  position  of  the  mayor. 

CHAPTER    XXIV.      TYPES    OF    MUNICIP.^L    ORGANIZATION- 
CITY  GOVERNMENT  BY  A  COMMISSIOxN 430 

The  principles  of  the  commission  form  of  government.  Origin 
and  spread  of  commission  government.  Methods  by  which  cities 
may  adopt  the  commission  type  of  government.  Machinery  of 
city  government  by  commission.  Popular  control  of  the  com- 
mission. Merits  and  faults  of  the  commission  form  of  govern- 
ment.  Results  of  city  government  by  commission. 

CHAPTER  XXV.     TYPES  OF  MUNICIPAL  GOVERNMENT-THE 
CITY-MANAGER 445 

Definition.  Development  and  spread  of  the  city-manager  move- 
ment. Method  of  adoption.  The  Dayton  city-manager  plan. 
The  Ashtabula  plan.   Results  of  the  city-manager  plan. 

CHAPTER    XXVI.      ADMINISTRATIVE    DEPARTMENTS,    OFFI- 
CIALS AND  EMPLOYEES 454 

The  position  of  administrative  departments.  Development  of 
administrative  departments.  Control  of  departments  by  council. 
Advantage  of  council  committees  as  administrative  bodies. 
Number  of  administrative  departments.  Choice  and  qualifica- 
tions of  heads  of  departments.  Terms.  Organization  and  cor- 
relation of  administrative  departments.  Subordinate  officials  and 
employees.  Politics  and  administration.  Methods  of  improve- 
ment. Selection  of  municipal  officials  and  employees.  Principles 
of  municipal  civil  service.   Labor  unions  and  city  employees. 

CHAPTER  XXVII.     MUNICIPAL  ADMINISTR.\TION.     SAFETY    .     470 

Functions  and  duties  of  the  police.  European  and  American 
conceptions  of  police  functions.  Difliculties  of  American  police 
administration.  Development  of  the  police  in  the  United  States. 


X  STATE  AND  MUNICIPAL  GOVERNMENT 

PAGE 

State  versus  local  control  of  the  police.  Organization  of  the  police 
department.  Expenditure  on  the  police  department.  Fire  losses 
in  the  United  States.  Fire  prevention  and  protection.  Organi- 
zation of  the  fire  department.  Cost  of  the  fire  department. 
Development  of  city  organization  for  the  preservation  of  health. 
Legal  basis  of  sanitary  police  powers.  Organization  of  the  health 
department.  Relations  of  the  health  department  to  other  depart- 
ments. Functions  of  the  board  of  health.  Expenditure  in  health 
conservation.    The  building  department. 

CHAPTER     XXVIII.       MUXICIP.\L     ADMIXISTRATIOX.      COX- 
VEXIEXCE 491 

City  planning.  Composition  and  powers  of  planning  board. 
The  basis  of  a  city  plan.  Difficulties  of  city  planning.  Cost  of 
city  planning.  Importance  of  city  streets.  The  street  depart- 
ment in  city  government.  Cost  of  streets.  Special  problems 
connected  with  streets.  Methods  of  street  construction  and  pave- 
ments. Importance  of  water  supply.  Requisites  of  water  sup- 
ply. Sources  of  water  supply.  Water  purification.  Public  and 
private  supplies  of  water.  Water  departments.  Water  finance. 
Importance  of  the  disposal  of  wastes.  Classification  of  the  city's 
wastes.  Sewage.  Definition  of  public  utilities.  Important  ele- 
ments in  a  franchise.  Types  of  public  utilities.  Relative  merits  of 
municipal  and  private  operation  of  public  utilities. 

CHAPTER  XXIX.   MUNICIPAL  ADMINISTRATION.  EDUCATION, 
CHARITIES,   AND    CORRECTIONS 522 

Development  of  education  in  the  United  States.  Organization  of 
the  school  department.  The  school  plant.  Functions  of  the 
school  system.  School  finance.  Poor  relief.  Hospitals.  Care 
of  children.    The  department  of  charities.    Corrections. 

CHAPTER  XXX.     MUNICIPAL  ADMINISTRATION.  MUNICIPAL 
FIN.ANCE 533 

Importance  of  municipal  finance.  Sources  of  municipal  revenue. 
Rate  of  taxation.  Collection  of  taxes.  Municipal  expenditures 
and  appropriations.  Methods  of  controlling  appropriations  and 
disbursements.  Municipal  budget.  Accounting.  Debts.  Debt 
limits.  Futility  of  legislative  restrictions.  Payment  of  municipal 
debts. 

INDEX S5I 


STATE  AND  MUNICIPAL 
GOVERNMENT 

PART  I 

THE  CONSTITUTIONAL  BASIS  OF  STATE 
GOVERNMENT 


CHAPTER  I 

THE  NATURE  OF  THE  AMERICAN  STATE 

The  United  States  is  composed  of  forty-eight  states,  yet 
national  questions  rather  than  questions  of  state  policy  attract 
the  greater  attention.  Foreign  affairs,  the  tariff,  the  control 
of  interstate  commerce,  and  the  marked  tendency  to  extend 
federal  authority  in  every  field — a  tendency  which  began 
after  the  Civil  War  and  has  increased  with  portentous  rapidity 
— have  led  to  concentration  upon  the  policy  and  politics  of  the 
federal  government  at  the  expense  of  state  and  local  government. 

Yet  it  is  well  to  remember  that  without  the  states  the  The 
peculiar  federal  system  of  the  United  States  could  not  exist,  importance 
The  Constitution  was  ratified  by  the  people  acting  by  states,  o"he  states 
and  it  can  be  amended  not  by  a  popular  referendum  but  only 
by  the  consent  of  three  fourths  of  the  states.  Thus  the  people 
in  thirteen  states — perhaps  a  pitiful  minority  of  the  whole 
population  of  the  United  States — can  prevent  the  adoption  of 
an  amendment  ardently  desired  by  the  vast  majority  of  the 
people.  The  presidential  electors  are  not  chosen  strictly  on 
the  basis  of  population,  but  from  the  states;  and  each  state, 
whether  large  or  small,  has  an  equal  representation  in  the 
Senate.  The  political  unit  of  the  United  States  is  the  state — 
with  but  few  restrictions  the  states  prescribe  the  qualifications 
for  suffrage;  the  national  elections  are  conducted  under  state 
laws  by  state  officials.  Thus,  without  the  political  action  of 
the  states  the  national  government  would  run  down  and  stop. 

As  will  be  seen,  the  Federal  Constitution  did  not  attempt  Recognition 
to  provide  an  all-inclusive  frame  of  government  to  cover  all  portance  of 
the  activities  of  its  citizens.    The  framers  of  the  Constitution  ^*^^^/^^." 

ernment  in 

believed  that  the  greater  part  of  the  life  of  a  citizen  should  lie  the  Federal 

1     r    1        1  1       o  111  -        J   Constitu- 

beyond   federal  control.    State  and   local  government   existed  tion 
before  the  Federal  Constitution  was  framed  and  were  recog- 
nized and  protected  by  it.    It  was  felt  that  self-government 

3 


4  STATE  AND  MUNICIPAL  GOVERNMENT 

was  more  assured  in  the  hands  of  the  states,  that  the  govern- 
ment of  the  state  would  be  more  immediately  subject  to  the 
control  of  its  citizens  than  would  the  federal  government, 
which,  in  1787,  seemed  remote.  Therefore  the  Federal  Con- 
stitution not  merely  recognized  and  utilized  the  state  govern- 
ments but  established  limits  beyond  which  Congress  could  not 
encroach  upon  the  field  of  state  control,  and  gave  guarantees 
to  state  rights  and  state  equality.  State,  not  national,  govern- 
ment is  more  important  in  the  daily  life  of  citizens,  and  state 
government  is  all-important  in  determining  the  powers  and 
responsibilities  of  the  smaller  units  of  local  government. 
Variation  of  The  forty-eight  states  present  bewildering  variations.  In 
area^and  ^^ea  they  Vary  from  Texas  with  265,896  square  miles  to  Rhode 
population  Island  with  1248.  While  the  largest  states  have  territories  of 
greater  extent  than  the  French  Republic  or  the  former  German 
Empire,  the  smallest  state  is  not  larger  than  many  of  the 
counties  in  the  larger  states.  New  York,  with  a  population 
of  over  10,000,000,  has  more  than  one  hundred  and  twenty- 
five  times  as  many  people  as  Nevada,  the  least  populous  state, 
yet  New  York  and  Nevada  have  equal  representations  in  the 
Senate.  The  population  of  New  York  is  three  times  as  great 
as  that  of  Denmark  or  Switzerland  and  twice  as  great  as  that 
of  Sweden,  which  are  independent  states.  Nevada,  the  smallest 
state,  with  its  population  of  77,407,  is  outranked  in  population 
by  more  than  eighty  cities  in  the  United  States.  The  distribu- 
tion of  this  population  varies  in  the  different  states.  In  Rhode 
Island  there  are  566.4  persons  to  the  square  mile;  in  Massa- 
chusetts, 479.2;  in  New  Jersey,  420.0;  at  the  other  extreme, 
Nevada  has  .7  to  the  square  mile,  Wyoming  2.0,  Arizona  2.9, 
while  New  York,  with  her  great  population  and  great  area, 
has  217.9.  This  mass  of  people  is  by  no  means  homogeneous, 
as  may  be  seen  from  the  census.  In  the  United  States  as  a 
whole  the  percentage  of  foreign  born  is  14.5.  It  varies  in 
the  states  from  29.2  per  cent  in  Rhode  Island,  28.3  per  cent 
in  Massachusetts,  and  27.4  per  cent  in  New  York  to  only 
.4  per  cent  in  North  Carolina  and  .9  per  cent  in  Georgia, 
Kentucky,  and  Mississippi.  In  llie  states  just  enumerated,  as 
well  as  in  the  other  Southern  states,  the  homogeneity  of  the 


THE  NATURE  OF  THE  AMERICAN  STATE    5 

population  is  complicated  by  the  question  of  color.  Thus,  in 
South  Carolina  there  are  approximately  865,000  colored  to 
819,000  whites,  and  in  Mississippi  there  are  935,000  colored 
to  854,000  whites. 

In  climate  and  resources  the  states  present  marked  dis-  ciimate  and 
similarities  and  variations.  Thus,  Maine  in  winter  is  literally 
as  cold  as  Greenland,  while  in  summer  it  has  the  temperature 
of  France.  Florida  has  the  temperature  of  northern  Africa, 
and  in  the  northern  states  of  the  Mississippi  Valley  the  tem- 
perature varies  in  winter  from  that  of  Greenland  to  one  which 
is  similar  to  southern  France  in  the  summer.  These  differences 
and  dissimilarities  in  climate  give  varied  natural  resources, 
which  in  turn  makes  for  a  varied  industrial  life,  and  this  in 
its  turn  affects  the  political  life  of  the  different  states.  Thus, 
Rhode  Island,  INIassachusetts,  Connecticut,  New  York,  Penn- 
sylvania, and  Illinois  rank  high  as  manufacturing  states  and 
face  problems  inseparably  connected  with  the  massing  of 
large  laboring  populations  in  small  areas.  Minnesota  and  the 
Dakotas,  Kansas  and  Nebraska,  are  the  great  grain-growing 
states  with  a  widely  distributed  population  which  is  little 
affected  by  the  problems  of  the  manufacturing  states.  In  the 
South  the  peculiar  crops,  cotton  and  tobacco,  coupled  with  the 
presence  of  a  large  colored  population  present  problems  far 
different  from  those  of  the  Northern  states.  The  states  afford 
a  similar  contrast  in  wealth :  New  York  has  an  estimated 
wealth  of  $25,000,000,000,  Pennsylvania  and  Illinois  $15,000,- 
000,000  each,  California  $8,000,000,000,  Iowa  $7,000,000,000, 
and  Massachusetts  $6,000,000,000 ;  while  at  the  other  extreme 
stands  Nevada  with  a  total  wealth  of  about  $457,000,000. 

In  spite  of  these  conspicuous  variations  the  states  present  similarities 

f\-f     C  ♦"  1 1"  P  S 

almost  equally  marked  similarities.  A  traveler  is  not  con- 
scious of  the  boundary  lines,  for  no  customhouse  marks  them. 
Throughout  the  country  there  is  one  common  language,  not 
merely  officially  but  actually.  In  spite  of  minor  differences 
there  is  a  common  system  of  education,  extending  from  the 
primary  schools  to  state  universities.  Nowhere  is  there  an 
established  church.  Everywhere  there  is  freedom  of  religious 
worship  and  a  clear  separation  and  a  jealous  demand  that  no 


6  STATE  AND  MUNICIPAL  GOVERNMENT 

religion,  church,  or  denomination  should  attempt  to  control 
the  political  action  of  the  state.  In  all  the  states  there  is  a 
similar  system  of  state  government.  All  state  constitutions,  in 
spite  of  numerous  obvious  though  superficial  variations,  re- 
semble the  Federal  Constitution  in  the  jealous  separation  of  the 
departments  of  government.  All  the  states  alike  are  subject 
to  the  supremacy  of  the  Federal  Constitution,  with  the  rights 
which  it  guarantees  to  all  citizens  of  the  United  States.  Fed- 
eral coinage,  federal  laws,  and  federal  jurisdiction  are  found 
in  every  state.  Constitutional  amendments,  such  as  the 
Eighteenth  and  Nineteenth  Amendments,  may  force  an  un- 
willing state  to  adopt  prohibition  or  to  extend  the  suffrage  to 
women.  Through  the  power  to  tax  and  to  control  interstate 
commerce  the  federal  government  is  more  and  more  imposing 
upon  the  states  a  common  standard  in  industry  and  even  in 
morals.  Thus  the  pure-food  law,  the  federal  child-labor  law, 
the  law  prohibiting  the  transportation  of  lottery  tickets,  and 
the  white-slave  law  reveal  the  extension  of  federal  activities. 
American,  Moreover,  apart  from  the  official  and  governmental  under- 
nationaiity  takings,  there  are  many  tendencies  toward  a  common  life. 
The  recent  movement  for  Americanization  emphasizes  the 
commonwealth  of  the  United  States  rather  than  the  individual 
peculiarities  of  the  various  states.  National  industries  spread 
their  products  throughout  the  whole  country,  and  the  same 
articles  of  use  and  apparel  may  be  found  in  Maine  and  Cali- 
fornia. National  magazines  and  papers  spread  a  common 
standard  of  culture  and  similar  ideas  from  Washington  to 
Florida.  Throughout  the  country  there  are  the  same  national 
political  parties,  national  platforms,  and  national  aims. 
Throughout  the  Union  there  is  a  single  nationality.  I'he 
I'Vderal  Constitution  was  adopted  before  the  variations  of 
different  states  had  developed  individual  nationalities.  The 
advantages  of  union  and  the  protection  of  the  federal  govern- 
ment were  recognized,  and  in  spite  of  the  peculiarities  of  dif- 
ferent states  a  spirit  of  unity  developed  which  was  strong 
enough  to  survive  the  shock  of  (he  Civil  War  and  which 
subsequent  experiences  have  strengthened. 


THE  NATURE  OF  THE  AMERICAN  STATE         7 

The  States  and  the  Nation 

The  American  states  are  bodies  politic.  A  good  definition  of 
a  body  politic  is  found  in  the  preamble  to  the  Massachusetts 
constitution  in  these  words: 

The  body  politic  is  formed  by  a  voluntary  association  of  indi-  The  state 
viduals  :  it  is  a  social  compact,  by  which  the  whole  people  covenants  poi/tlc 
with  each  citizen,  and  each  citizen  with  the  whole  people,  that  all  shall 
be  governed  by  certain  laws  for  the  common  good.  It  is  the  duty  of 
the  people,  therefore,  in  framing  a  constitution  of  government,  to  pro- 
vide for  an  equitable  mode  of  making  laws,  as  well  as  for  an  im- 
partial interpretation  and  a  faithful  execution  of  them ;  that  every 
man  may,  at  all  times,  find  his  security  in  them. 

The  purposes  for  which  a  body  politic  exists  are  well  set 
forth  in  the  preamble  of  the  Constitution  of  the  United  States : 

We  the  people  of  the  United  States,  in  order  to  form  a  more  perfect 
union,  establish  justice,  insure  domestic  tranquillity,  provide  for  the 
common  defence,  promote  the  general  welfare,  and  secure  the  bless- 
ings of  liberty  to  ourselves  and  our  posterity  .  .  . 

In  other  words  a  body  politic  exists  for  the  purpose  of 
government,  and  its  powers  may  extend  to  complete  control 
over  the  lives,  liberty,  and  property  of  its  people.  Not  every 
body  politic  may  possess  this  complete  control ;  the  American, 
state  does  not,  for,  as  will  be  seen,  the  Constitution  sets  cer- 
tain limits  upon  the  power  of  the  state  in  dealing  with  the 
life,  liberty,  and  property  of  any  of  its  citizens,  rt'hus  the 
Fourteenth  Amendment  declares  that  no  state  shall  ''deprive 
any  person  of  life,  liberty,  or  property,  without  due  process  of 
law."\  While  the  American  states  may  thus  not  possess  the 
unliniited  authority  of  sovereign  bodies  politic,  no  group  of 
people,  except  a  body  politic,  possesses  rightfully  any  such 
power.  Bodies  politic  are  characterized  by  the  kind  rather 
than  by  the  degree  of  power  which  they  hold.  They  may  have 
this  power  to  an  unlimited  extent  and  thus  be  completely 
sovereign  and  independent ;  on  the  other  hand,  they  may  be 
subject  to  certain  limitations  which  restrict  their  independence 
and  limit  the  exercise  of  their  power. 


8 


STATE  AND  MUNICIPAL  GOVERNMENT 


The 

American 
states  not 
sovereign 
bodies 
politic 


Federalism 


Distribu- 
tion of 
powers. 
Powers 
granted  to 
the  national 
government 


The  American  states  are  not  sovereign,  independent  states. 
Their  independence  was  sacrificed  at  their  ratification  of  the 
Constitution,  and  in  like  manner  their  sovereignty  was  re- 
stricted. Until  the  Civil  War  this  point  was  disputed.  Politi- 
cal theorists  and  statesmen  took  different  sides  and  argued 
with  equal  plausibility  that  the  United  States  was  sovereign 
or  that  the  United  States  was  composed  of  a  group  of  sovereign 
states  which  possessed  all  political  power  not  surrendered  by 
the  express  words  of  the  Federal  Constitution,  and  that  this 
power  included  the  right  at  any  time  to  secede  from  the 
Union.  The  appeal  to  arms  decided  the  issue.  Since  the 
Civil  War  no  one  can  question  that  the  people  of  the  United 
States,  and  not  the  states  nor  the  people  of  any  state,  possess 
the  ultimate  sovereignty.  In  recent  times  this  has  been  strik- 
ingly illustrated  by  the  passage  of  the  Eighteenth  and  Nine- 
teenth Amendments  to  the  Constitution,  which  drew  upon  the 
powers  reserved  to  the  states  or  the  people  and  enforced  upon 
unwilling  states  the  prohibition  of  the  sale  or  manufacture  of 
alcoholic  beverages  and  the  extension  of  the  suffrage  to  women. 

The  Constitution  of  the  United  States  created  a  federal 
state.  It  did  not  in  itself  provide  a  scheme  of  government  to 
control  all  the  relations  of  life;  it  did  create  a  body  politic, 
partly  national  and  partly  local.  The  national  part  is  to  be 
found  in  the  federal  government,  the  local  part  in  the  states. 
What  the  Constitution  does  is  to  divide  the  totality  of  the 
powers  of  government  between  the  federal  government  and  the 
states.  This  division,  however,  is  not  made  upon  the  same 
basis.  The  powers  of  the  federal  government  are  granted  to  it 
by  the  Constitution.  The  powers  of  the  states  are  inherent; 
they  receive  no  new  powers  from  the  Constitution ;  their  rights 
are  protected,  their  powers  reserved  to  them. 

As  has  been  pointed  out,'  the  powers  granted  to  the  federal 
government  are  chiefly  political.  The  prohibitions  upon  the 
federal  government  are  largely  in  the  nature  of  preventing  it 
from  interfering  in  the  realm  of  domestic  affairs.    One  great 

'  F.  J.  Stimson,  The  American  Conslitulion,  passim;  also  Federal  and 
State  Constitutions  of  the  United  Slates,  pp.  106-118.  Eventt  Kimball, 
The  National  (lovernmcnt  of  the  United  States,  pj).  50-55. 


THE  NATURE  OF  THE  AMERICAN  STATE         9 

exception,  however,  is  found  in  the  Fourteenth  Amendment,  by 
which  the  federal  government  is  made  the  judicial  censor  of 
state  legislation  lest  such  might  deprive  the  citizens  of  the 
United  States  of  ''life,  liberty,  or  property,  without  due 
process  of  law." 

The  prohibitions  upon  the  states  are  of  two  sorts.    In  the  Prohibitions 
first  place,  certain  definite  prohibitions  are  laid  upon  them,  states:* 
These  are  found  in  Article  I,  Sect.  x.    In  general  they  prohibit 
the  states  from  exercising  powers  which  might  interfere  with 
those  already  granted  to  the  federal  government,  and  they  may 
be  roughly  classified  under  several  heads : 

1.  Foreign  and  military  affairs.  The  states  are  prohibited  (i)  Foreign 
from  entering  into  treaties,  alliances,  and  confederations,  and  no  tao'™ffairs 
state  may  enter  into  an  agreement  or  compact  with  any  other 

state  or  with  a  foreign  state  unless  Congress  assents.  States 
may  not  grant  letters  of  marque  or  reprisal,  keep  troops  or  ships 
in  time  of  peace,  or  engage  in  war  unless  actually  invaded. 

2.  Prohibitions  upon 'State  control  over  the  monetary  sys-  (2)  Mone- 
tem.    No  state  may  coin  money  or  make  anything  but  gold  or     ^  ^^^  *™ 
silver  legal  tender.    In  addition,  a  state  may  not  emit  bills  of 

credit.  A  bill  of  credit  "must  be  issued  by  a  state  on  the 
faith  of  the  state  and  designed  to  circulate  as  money.  It  must 
be  a  paper  which  circulates  on  the  credit  of  the  state ;  and  so 
received  and  used  in  the  ordinary  business  of  life."^  However, 
a  state  may  charter  banks  and  trust  companies  and  give  to 
them  the  right  of  issuing  money,  but  these  state  bank  notes 
are  not  considered  bills  of  credit.  In  1866  Congress  effectually 
prevented  the  issuance  of  such  notes  by  levying  a  tax  of  10  per 
cent  upon  all  bank  notes  issued  by  banks  other  than  the 
national  banks  chartered  by  the  United  States. 

3.  Prohibitions  upon  taxation.    With  the  intention  of  pro-  (3)  Taxation 
tecting  Congress  in  its  power  to  regulate  all  foreign  and  domes- 
tic commerce,  states  are  prohibited   from  levying  import  or 

export  duties.  States  still  possess  the  power  to  tax  property 
within  their  jurisdiction.  Very  early  the  question  arose  as  to 
when  an  article  imported  into  a  state  ceased  to  be  under 
the  protection  of  the  commerce  clause  and  became  a  part  of 

^ Craig  V.  Missouri,  4  Peters,  410,  431,  432. 


10        STATE  AND  MUNICIPAL  GOVERNIMENT 

the   general    property   of    the   state.     In    1827    Chief   Justice 
Marshall   held: 

It  is  sufficient  for  the  present  to  say,  generally,  that  when  the 
importer  has  so  acted  upon  the  thing  imported  that  it  has  become 
incorporated  and  mixed  up  with  the  mass  of  property  in  the  coun- 
try, it  has,  perhaps,  lost  its  distinctive  character  as  an  import,  and 
has  become  subject  to  the  taxing  power  of  the  state ;  but  while  re- 
maining the  property  of  the  importer,' in  his  warehouse,  in  the 
original  form  or  package  in  which  it  was  imported,  a  tax  upon  it 
is  too  plainly  a  duty  upon  imports  to  escape  the  prohibition  in  the 
Constitution.^ 

This  very  seriously  limits  not  merely  the  power  of  the  state 

to  levy  taxes  but  also  to  pass  laws  under  the  police  power 

regulating    the    health    or    morals    of    its    citizens.     For    the 

purpose  of  its  inspection  laws,  however,  a  state  is  allowed  to 

levy  fees,  the  net  proceeds  of  which  shall  be  for  the  use  of 

the  treasury  of  the  United  States.    States,   furthermore,  are 

forbidden  to  lay  any  duty  on  tonnage ;  that  is,  upon  the  entire 

internal  capacity  or  contents  of  a  vessel,  expressed  in  tons  of 

one  hundred  cubic  feet  each.    States  may  tax  ships  of  their 

citizens  as  property,  valued  as  such,  but  they  may  not  tax 

ships  as  instruments  of  commerce." 

[Taxation  of      Although  not  expressed  in  the  Constitution,  states  are  pro- 

of^he'"^"  ^  hibited   from  taxing  the  instruments  of  the  national  govern- 

^^o'vemm    ti  ^^^*-  ^^  ^'J^'^  '''  ^'^^V  ^^  would  interfere  with  their  efficient  use. 

The  earlier  doctrine  restrained  the  states  from  levying  taxes 

of   any   sort    upon   such    federal   instruments   since   Marshall 

held  that   the  power  to  tax  was  the  power  to  destroy.    But 

in  1869,  in  National  Bank  v.  Commonwealth;'^  the  modern  rule 

permitting  taxes  which  do  not  interfere  with  the  functions  of 

the  instruments  was  established. 

(4)  Con-  4.  Property  is   furthermore  protected  against   state  action 

'**^  ^  by  the  injunction  that  no  state  shall  pass  any  law  impairing 

the  obligation  of  contracts.    A  contract  is  extensively  defined 

by  the  courts;  briefly,  it  means  an  agreement  enforceable  at 

^  Brown  v.  Maryland,  12  Wheat.    410,  441-442. 
'Stale  Tonnage  Tax  Cases,  12  Wall.  204. 
•■'9  Wall.  3:ii. 


THE  NATURE  OF  THE  AMERICAN  STATE       ii 

law.  In  1 8 19  Chief  Justice  ISIarshall,  in  the  Dartmouth  Col- 
lege case,  held  that  a  charter  granted  by  a  state  was  in  the 
nature  of  a  contract  protected  by  this  clause.  This,  appar- 
ently, put  beyond  the  power  of  the  state  legislature  the  modi- 
fication of  the  charters  and  grants  which  earlier  legislatures 
had  made.  The  states  took  prompt  action,  and  in  most  of 
their  constitutions  is  found  a  provision  declaring  illegal  any 
charter  or  grant  which  does  not  contain  the  express  right  of 
the  state  to  modify  or  annul  such  grants.  Moreover,  the  courts 
have  held  that  charters  and  grants,  like  all  other  private  prop- 
erty, may  be  acquired  by  the  states  provided  compensation 
is  given.  It  has  been  held,  furthermore,  that  charters  and 
grants  are  subject  to  the  police  power  of  the  states, 

5.  The  personal  rights  of  the  citizens  of  a  state  are  pro-  (5)  Personal 
tected  against  state  legislation  by  certain  constitutional  pro- 
hibitions. A  state  may  not  grant  a  title  of  nobility;  it  may 
not  pass  a  bill  of  attainder ;  it  may  not  pass  an  ex  post  facto 
law.  A  bill  of  attainder  is  a  legislative  act  which  inflicts  pun- 
ishment without  a  judicial  trial.  An  ex  post  facto  law  is  not 
a  retroactive  law,  but  is  one  which  makes  an  act  already 
performed  criminal,  or  which  increases  the  penalty  for  a  crime 
or  alters  the  procedure  to  the  disadvantage  of  the  accused. 

By  far  the  most  important  limitations  upon  state  authority  The 
are  found  in  the  Fourteenth  Amendment.  ''No  State  shall  Amendment 
make  or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property,  without 
due  process  of  law ;  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws."  This  amendment 
was  designed  to  protect  the  newly  emancipated  slaves,  and  in 
the  early  cases  under  it  the  court  held  strictly  to  that  intent. 
Later  interpretations,  however,  have  extended  it  to  all  classes 
of  citizens  and  persons,  including  corporations. 

The  courts  have  extensively  interpreted  the  words  ''life,"  Life, 
"liberty,"  and  "property."    The  word  'liberty"  has  come  to  propS'y a" 
mean  the  freedom  of  an  individual  to  do  what  he  desires  within  j,°y  ^'jfj'^^^'^ 
the  limits  of  a  law  properly  passed  and  properly  enforced ;  courts 
within  these  limits  all  persons  are  free  alike  from  private  or 


12        STATE  AND  MUNICIPAL  GOVERNMENT 

governmental  interference.  Liberty  means  freedom  of  contract, 
the  right  to  work,  the  right  to  acquire  property.     Property 
also  has  been  interpreted  to  include  not  merely  tangible  but 
intangible  property.    Due  process  of  law  is  never  completely 
defined.    It  means  what  the  judge  thinks  is  just  and  equitable 
under  the  circumstances,  viewed  in  the  light  of  previous  deci- 
sions.^   Equal  protection  of  the  laws  does  not  require  that  all 
persons  and  things  should  be  treated  alike.    It  allows  the  state 
legislature   to   make  classifications   and   distinctions  provided 
such  classifications  and  distinctions  are  based  upon  fair  and 
reasonable  grounds  and  do  not  show  unjust  discriminations. 
Privileges         The  Fourteenth  Amendment  also  prevents  the  states  from 
nitie'sof""    abridging  the  privileges  and  immunities  of  the  citizens  of  the 
state^citi-    United    States.     What    these    privileges    and    immunities    are 
zens  as  in-    has  never  been  inclusively  defined  by  the  courts,  but  in  the 

terpreted  by  j  j  i 

the  courts     Slaughter  House  Cases-  they  have  enumerated  some  of  them 
as  follows : 

.  .  .  We  venture  to  suggest  some  which  owe  their  existence  to  the 
Federal  Government,  its  national  character,  its  Constitution,  or  its 
laws.  One  of  these  is  well  described  in  the  case  of  Crandall  v. 
Nevada,  6  Wall.  36.  It  is  said  to  be  the  right  of  the  citizen  of  this 
great  country,  protected  by  implied  guaranties  of  its  Constitution, 
"to  come  to  the  seat  of  government  to  assert  any  claim  he  may 
have  upon  that  government,  to  transact  any  business  he  may  have 
with  it,  to  seek  its  protection,  to  share  its  offices,  to  engage  in  ad- 
ministering its  functions.  He  has  the  right  of  free  access  to  its 
seaports,  through  which  all  operations  of  foreign  commerce  are  con- 
ducted, to  the  sub-treasuries,  land  offices,  and  courts  of  justice  in 
the  several  States."  .  .  . 

Another  privilege  of  a  citizen  of  the  United  States  is  to  demand 
the  care  and  protection  of  the  Federal  Government  over  his  life, 
liberty  and  property  when  on  the  high  seas  or  within  the  jurisdic- 
tion of  a  foreign  government.  Of  this  there  can  be  no  doubt,  nor 
that  the  right  depends  upon  his  character  as  a  citizen  of  the  United 
States.  The  right  to  peaceably  assemble  and  petition  for  redress  of 
grievances,  the  privilege  of  the  writ  of  habeas  corpus,  are  rights  of 
the  citizen  guarantied  by  the  Federal  Constitution.    The  right  to  use 

'  For  a  brief  description  of  this  phrase  see  Beard,  American  Government 
and  Politics,  pp.  439,  441.  -  lO  Wall.  36,  70-80. 


THE  NATURE  OF  THE  AMERICAN  STATE       13 

the  navigable  waters  of  the  United  States,  however  they  may  pene- 
trate the  territory  of  the  several  States,  and  all  rights  secured  to  our 
citizens  by  treaties  with  foreign  nations,  are  dependent  upon  citizen- 
ship of  the  United  States,  and  not  citizenship  of  a  State.  One  of 
these  privileges  is  conferred  by  the  very  article  under  consideration. 
It  is  that  a  citizen  of  the  United  States  can,  of  his  own  volition, 
become  a  citizen  of  any  State  of  the  Union  by  a  bona  fide  residence 
therein,  with  the  same  rights  as  other  citizens  of  that  State.  To 
these  may  be  added  the  rights  secured  by  the  thirteenth  and  fif- 
teenth articles  of  amendment,  and  by  the  other  clause  of  the  four- 
teenth, next  to  be  considered.  .  .  . 

The  Constitution  also  imposes  certain  obligations  upon  the  obligations 
states  in  dealing  with  each  other.    ''Full  faith  and  credit  shall  i^eTtates" 
be  given  in  each  State  to  the  public  acts,  records,  and  judicial  '^^^^^'^^^ 
proceedings  of  every   other  State." ^    This  means,  in  a  civil  credit" 

,  ,  ,  -  ,      ,  •  •     1  ^   clause  (i)  in 

case,  that  when  the  courts  of  one  state  have  given  judgment  judgments 
such  judgment  will  be  recognized  and  enforced  by  the  courts 
of  every  other  state  without  a  new  trial.    It  means,  moreover, 
that  contracts  legally  entered  into  in  one  state  are  binding 
and  enforceable  in  the  courts  of  another. 

In  the  matter  of  divorce  this  clause  has  not  been  altogether  (2)in divorce 
satisfactory.  By  this  clause  a  state  is  required  to  recognize  a 
divorce  granted  in  any  other  state  even  for  reasons  for  which 
the  laws  of  the  first  state  would  not  allow  a  divorce.  The  only 
restriction  which  the  courts  have  upheld  is  that  the  state  grant- 
ing the  divorce  should  have  jurisdiction  over  the  parties ;  that 
is,  that  the  party  should  have  a  bona-fide  residence  within  the 
state  and  that  proper  notice  of  the  suit  should  be  given. 

The  Constitution  provides  for  the  surrender  of  persons  (3)  in  extra- 
charged  with  treason,  felony,  or  other  crimes  upon  the  demand 
of  the  authorities  of  the  state  where  the  crime  was  committed.^ 
While  in  its  form  this  obligation  is  mandatory,  actually  it  is 
discretionary  with  the  governor  of  the  state  whether  or  not  the 
extradition  shall  be  granted.'' 

iThe  Constitution  of  the  United  States,  Article  IV,  Sect.  i. 

-Ibid.  Sect,  ii,  clause  2. 

3 See  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States, 
Vol.  I,  pp.  222-224.  C.  A.  Beard,  Readings  in  American  Government  and 
Politics,  p.  148,  gives  examples  of  extradition  proceedings. 


14        STATE  AND  MUNICIPAL  GOVERNMENT 

states  A  second  limitation  upon  the  powers  of  the  states  is  found 

delegation  in  the  delegation  of  certain  powers  to  the  federal  government.^ 
°ller7i^^^°  Some  of  these  powers  are  the  exclusive  prerogative  of  the  fed- 
government  erai  government,  and  the  states  are  prohibited  in  their  exer- 
cise ;  for  example,  the  war  power,  the  treaty-making  power, 
and  the  power  to  regulate  commerce,  both  interstate  and  for- 
eign. (Other  powers  indirectly  control  the  social  and  personal 
relations  of  the  citizens  of  the  states.  Thus,  as  has  been  men- 
tioned, certain  laws  which  have  been  passed  under  the  power 
granted  to  the  federal  government  to  levy  taxes  and  to  regu- 
late commerce  have  effectually  prevented  state  action  of  one 
sort  or  compelled  state  action  of  another.  The  power  given 
to  the  federal  government  to  regulate  post  offices  and  post 
roads  has  been  extended  so  that,  by  the  fraud  orders,  the 
citizens  of  the  states  are  protected  by  federal  rather  than  state 
laws  against  illegitimate  financial  operations,  and  in  war  time 
a  quasi  censorship  was  established  over  the  press.  The  taxing 
power  granted  to  the  federal  government  may  be  used  directly 
to  prevent  states  from  allowing  certain  kinds  of  finance  or 
industry,  as  was  shown  in  the  lo  per  cent  tax  upon  notes 
issued  by  state  banks  and  the  taxes  levied  upon  matches  made 
from  white  phosphorus,  and  in  order  to  enforce  the  federal 
conception  of  child  labor,  not  that  of  the  states.  Indirectly,  the 
federal  taxing  power,  operating  upon  the  same  sources  of 
revenue  as  the  states,  may  practically  compel  the  states  to  seek 
other  systems  and  different  methods  of  finance. 
Powers  All  other  powers  of  a  body  politic  are  reserved  to  the  states 

the^states"  ^^  ^^  the  people.  The  general  characteristic  of  these  powers 
so  reserved  is  that  they  deal  with  the  social  and  personal 
rights  of  the  citizens.  The  federal  government  not  only  is 
not  granted  such  powers,  but  by  express  prohibitions  is  pre- 
vented from  entering  this  field.  Article  I,  Sect,  ix,  of  ths 
Constitution  enumerates  the  express  prohibitions  which  the 
framers  of  the  original  Constitution  thought  adequate.  These 
are  extended  and  made  more  explicit  by  the  first  ten  amend- 
ments— the  so-called  federal  bill  of  rights.    Freedom  of  religion, 

'  This  is  concisely  treated  in  A.  N.  Hoicombc,  State  Government  in  the 
United  States,  pp.  12-14. 


THE  NATURE  OF  THE  AMERICAN  STATE       15 

speech,  press,  assembly,  petition,  and  the  right  to  bear  arms 
are  protected  against  federal  action.  Excessive  bail  and  cruel 
punishments  are  prohibited.  The  right  of  jury  trial  with 
the  privilege  of  counsel  and  witnesses  is  guaranteed,  and  the 
writ  of  habeas  corpus  may  not  be  suspended  except  in  case 
of  rebellion  or  invasion.  Congress  may  pass  no  bill  of  at- 
tainder or  ex  post  facto  law,  grant  no  title  of  nobility,  levy 
no  export  duty,  give  no  preference  to  the  exports  of  one  state 
over  those  of  another,  nor  levy  any  direct  tax  except  an  income 
tax  unless  apportioned  according  to  the  population.  By  the 
Eleventh  Amendment  the  states  are  protected  from  suits 
begun  by  citizens  of  another  state  or  of  foreign  states. 

In  one  field,  however,  the  states  maintain,  in  theory  at  least.  The  police 
their  full  and  unrestricted  power.  This  is  in  the  exercise  of  ^°^  ^ 
the  police  power.  No  adequate  and  comprehensive  definition 
Has  been  made  of  this  power.  The  Supreme  Court  has  said 
that  it  was  ''nothing  more  nor  less  than  the  powers  of  govern- 
ment inherent  in  every  sovereignty  .  .  .  that  is  to  say,  the 
power  to  govern  men  and  things."^  Again,  the  court  has 
defined  the  police  power  as  the  right  of  the  states  to  make  laws 
which  "relate  to  the  safety,  health,  morals,  and  general  wel- 
fare of  the  public."-  Actually,  there  are  fundamental  limita- 
tions upon  the  free  exercise  of  this  power  by  the  states.  In 
the  first  place,  the  Fourteenth  Amendment  subjects  all  such 
regulations  to  the  scrutiny  of  the  Supreme  Court  lest  any  citi- 
zen should  be  deprived  of  his  life,  liberty,  or  property  without 
due  process  of  law,  or  denied  the  equal  protection  of  the  laws. 
In  the  second  place,  certain  direct  prohibitions  in  the  Con- 
stitution limit  this  power.  The  states  are  not  free  to  deal 
with  contracts  as  they  may  choose,  slavery  is  prohibited,  alco- 
holic beverages  forbidden.  In  the  third  place,  the  federal 
government  within  the  spheres  granted  to  it  has  the  power  of 
government.  That  is,  it  has  the  power  to  pass  regulations 
controlling  both  the  persons  and  things  within  these  spheres. 
This  is  strikingly  illustrated  by  the  federal  regulations  of  com- 
merce.   The  anti-trust  laws  and  the  federal  trade  commission 

'^License  Cases,  S  How.  504,  583. 
-Lochner  v.  New  York,  198  U.S.  45,  53. 


supremacy 


1 6        STATE  AND  MUNICIPAL  G0VERN:\IENT 

regulate  the  organization  of  business.  Numerous  statutes  de- 
termine the  conduct  of  commerce,  the  hours  of  labor,  and  even, 
in  the  Adamson  Law,  the  wages.  Federal  law,  moreover,  pro- 
hibits under  definite  penalties  the  transportation  of  certain 
articles,  and  this  prohibition  very  effectually  controls  their 
consumption  and  use  by  the  citizens  of  the  states.  Hence, 
even  in  this  field,  where  theoretically  the  states  are  supreme, 
there  is  a  growing  tendency  to  extend  the  activities  of  the 
federal  government. 
Federal  The  States  in  all  their  activities  are  subject  to  the  limitations 

of  the  Federal  Constitution : 

This  Constitution,  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof ;  and  all  treaties  made,  or  which  shall 
be  made,  under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land ;  and  the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  the  Constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding.^ 

Federal  supremacy  acts  directly  and  indirectly,  positively  and 
negatively.  It  acts  directly  when,  by  the  Federal  Constitu- 
tion, the  treaty-making  power,  or  a  federal  law,  it  operates 
so  as  to  compel  the  action  of  a  citizen  of  a  state.  The  pay- 
ment of  the  federal  income  tax,  the  registration  conducted 
under  the  draft  law,  may  be  taken  as  examples  of  direct,  posi- 
tive federal  supremacy.  It  acts  negatively  when  one  of  the 
federal  prohibitions  prevents  the  action  of  a  state  law.  Thus 
the  prohibition  upon  a  state  from  passing  a  law  which  violates 
the  obligation  of  contracts  has  frequently  prevented  a  state  legis- 
lature from  taking  the  action  it  desired.  It  acts  indirectly  when, 
as  in  the  case  of  the  regulation  of  commerce,  absence  of  federal 
regulation  has  been  held  to  prohibit  direct  state  regulation. 
Federal  supremacy  acts  not  upon  the  states  as  bodies  politic, 
but  upon  the  citizens  of  the  states,  who  are  at  the  same  time 
citizens  of  the  United  States.  It  is  not  addressed  to  state  gov- 
ernments, but  to  individuals,  therefore  it  is  generally  enforced 
by  judicial  process.  Federal  supremacy  is  asserted  in  a  case 
at  law  and  trial  in  the  federal  courts,  followed  by  a  decree 

^The  Constitution  of  the  United  States,  Article  VI,  clause  2. 


THE  NATURE  OF  THE  AMERICAN  STATE       17 

enforceable  by  the  United  States  marshal  or,  in  the  last  in- 
stance, by  the  United  States  troops.  Specifically,  cases  to 
which  the  United  States  is  a  party  or  cases  in  which  a 
federal  law  or  constitutional  right  has  been  questioned  may  be 
transferred  to  the  federal  courts  for  determination. 

By  the  original,  unamended  Federal  Constitution,  as  first 
adopted,  the  national  government  concerned  itself  with  na- 
tional affairs,  the  state  governments  with  the  domestic  rela- 
tions of  their  citizens.  Fundamental  rights  were  protected 
against  invasion  by  either  government.  The  first  ten  amend- 
ments were  designed  to  limit  the  federal  government  and  pro- 
tect the  governments  of  the  states.  Judicial  interpretation 
extended  the  powers  and  spheres  of  federal  activity,  and  expe- 
riences of  the  Civil  War  resulted  in  the  adoption  of  amend- 
ments which  apparently  made  the  federal  government  the 
censor  of  state  legislation.  Since  that  time  the  centralizing 
tendencies  have  steadily  grown.  Constitutional  amendments 
and  federal  legislation  alike  have  decreased  the  spheres  of  state 
activity  and  limited  state  control.  Yet  in  spite  of  these  restric- 
tions it  is  to  the  state  rather  than  to  the  federal  government 
that  the  citizens  look  first. 


CHAPTER  II 


STATE  CONSTITUTIONS 


Importance 
of  state  con- 
stitutions 


Origin  of 
state  con- 
stitutions 


Every  American  state  has  a  written  constitution.^  This 
constitution  is  the  basis  of  the  poHtical  institutions  of  the 
state.  It  organizes  the  frame  of  government ;  it  grants  powers 
to  the  various  departments  of  government,  and,  equally  im- 
portant, prescribes  limitations  upon  the  exercise  of  these 
powers ;  it  determines  the  electoral  qualifications  and  guaran- 
tees to  individuals  the  possession  of  the  rights  of  liberty  and 
property,  which  are  beyond  the  power  of  the  state  government 
to  touch.  State  constitutions  are  the  expression  of  the  sover- 
eign rights  of  the  people  of  the  states — rights  which  are 
limited  only  by  the  Federal  Constitution,  treaties,  and  federal 
laws.  In  the  life  of  the  people  of  a  state  the  state  constitution 
is  thus  the  most  important  and  fundamental  document. 

The  state  constitutions  are  the  oldest  political  documents 
in  the  United  States.  Although  like  the  Federal  Constitution, 
they  were  not  patterned  upon  it.  Rather,  the  Federal  Constitu- 
tion copied  and  adapted  many  of  the  principles  of  the  state 
constitutions.  The  latter  developed  from  the  colonial  charters, 
which  in  turn  were  modeled  upon  the  charters  of  the  great 
mercantile  companies  of  the  sixteenth  and  seventeenth  cen- 
turies. These  charters,  modified  from  time  to  time  by  fresh 
grants  from  the  king,  by  acts  of  Parliament,  and,  particularly, 
by  actual  experiences  gained  in  the  colonies,  served  as  the 

lA  detailed  analysis  and  careful  treatment  of  state  constitutions  is 
to  be  found  in  J.  Q.  Dealey,  The  Growth  of  American  State  Constitu- 
tions. See  also  W.  F.  Dodd,  The  Revision  and  Amendment  of  State  Con- 
stitutions ;  R.  S.  Hoar,  Constitutional  Conventions;  J.  A.  Jameson, 
A  Treatise  on  Constitutional  Conventions:  their  History,  Powers  and 
Modes  of  Proceeding.  The  constitutions  of  all  the  states  up  to  looo  are 
printed  in  F.  N.  Thorpe,  Federal  an<l  State  Constitutions.  The  volumes 
of  the  American  Year  Book  give  a  summary  of  the  amendments  adopted 
each   year. 

i8 


STATE  CONSTITUTIONS  19 

model  for  the  state  constitutions  which  were  adopted  in  the 
Revolutionary  period  and  in  the  last  quarter  of  the  eighteenth 
century.  Only  one  state,  Massachusetts,  retains  the  constitu- 
tion framed  during  this  period,  and  that  has  been  extensively 
amended  and  revised.  But  all  the  states,  even  in  their  most 
modern  and  latest  constitutions,  hark  back  to  the  principles 
and  framework  of  their  early  constitutions. 

The  first  movement  for  a  state  constitution  came  in  Massa-  The  first 
chusetts.^  On  June  9,  1775,  the  Continental  Congress-  advised  stitutions 
the  revolutionary  convention  of  Massachusetts  to  summon 
from  the  towns  representatives  who  should  choose  a  coun- 
cil and  exercise  the  powers  of  government.  This  form  of 
government  sufficed  for  Massachusetts  until  the  adoption  of 
the  present  constitution  in  1780.  In  1776  the  Continental 
Congress  again  advised  the  states  that  they  should  "adopt  such 
government  as  shall,  in  the  opinion  of  the  representatives  of 
the  people,  best  conduce  to  the  happiness  and  safety  of  their 
constituents  in  particular,  and  America  in  general."''  Connec- 
ticut and  Rhode  Island  were  so  content  with  the  framev/ork  of 
government  established  by  their  charters  that  they  continued 
to  operate  under  them  until  the  nineteenth  century.*  The 
other  states,  however,  formulated  written  constitutions  during 
the  Revolutionary  period. 

The   method   by  which   the   first   state   constitutions  were  Formula- 
framed  emphasizes  the  fact  that  these  constitutions  were  revo-  revoiution- 
lutionary  in  character.   With  the  exception  of  the  constitution  ^^^jong^^'" 
of  Massachusetts,  none  of  them  were  submitted  to  the  people 
for  ratification.    All  were  framed  in  bodies  existing  without 
legal  authority  or  by  assemblies  summoned  by  these  revolu- 
tionary bodies.    The  consent  of   the  people,  backed  by  the 
success  of  the  revolutionary  army,  was  the  sanction  which 
caused  the  general   acceptance  of  these  documents  and  the 
governments  established  by  them.    In  the  case  of  Massachu- 
setts and   New   Hampshire,   constitutional   conventions   were 

ij.  Q.  Dealey,  The  Growth  of  American  State  Constitutions,  chap.  iii. 

^Journals  of  the  Continental  Congress,  Vol.  II,  pp.  83-84. 

3Ibid.  Vol.  IV,  p.  342. 

■*  Connecticut  adopted  a  constitution  in  1818,  and  Rhode  Island  in  1842, 


/ 


20        STATE  AND  MUNICIPAL  GOVERNIVIENT 

summoned  by  the  revolutionary  bodies,  and  after  one  failure  in 
Massachusetts  and  two  in  New  Hampshire  they  succeeded  in 
producing  constitutions  which  were  accepted   by  the  people. 
In  South  Carolina  the  revolutionary  convention   framed  and 
proclaimed    the    constitution    itself    during    March,    1776.    In 
1777  the  legislature  prepared  a  new  constitution  which  was 
put  into   effect  by   the   next  assembly.     In   Delaware,   New 
Jersey,  Pennsylvania,  and  Virginia  the  revolutionary  conven- 
tions framed  the  constitutions.    In   Georgia,   Maryland,  New 
York,  and  North  Carolina  the  revolutionary  congresses  sum- 
moned conventions  which  framed  and  promulgated  constitu- 
tions without  submitting  them  to  the  people. 
Chief  provi-       Five  of  these  thirteen  constitutions  prescribed  no  method  of 
early  con-     amendment,^  but  this  did   not  prevent  the  legislatures   from 
stitutions:    aijgj-ing    the    constitutions'-    themselves    or    from    providing 
(i)  Method    methods  of  amendment.    This  absence  of  definite  methods  of 
ment  amendment  indicated  lack  of  consideration  rather  than  any 

conscious  attempt  to  create  sovereign  legislatures  with  con- 
stituent powers.  The  adoption  of  subsequent  constitutions 
and  later  amendments  early  developed  the  method  of  formula- 
tion, either  by  the  legislatures  or  by  conventions,  and  of 
ratification  by  the  people. 
(2)  The  The  frames  of  government  established  by  these  constitutions 

government    ,      ,  .....  » ,,      i  .  i     i    r 

in  early  con-  had  many  similarities.    All  the  states  provided  for  an  execu- 
stitutions     j^j^g     j^  ^j^g  j^g^  England  states  and  New  York  the  governor 

was  elected  by  the  voters;  elsewhere,  by  the  legislatures. 
South  Carolina  provided  for  a  two-year  term,  Delaware  and 
New  York  for  a  three-year  term.  In  the  other  states  the  gov- 
ernor was  chosen  annually.  Most  of  the  states  placed  re- 
strictions upon  his  reelection.  More  important,  however,  than 
the  method  of  choice  of  governor  was  the  fact  that  much,  if 
not  most,  of  the  executive  prerogative  of  the  colonial  governors 
was  transferred  to  the  legislatures.  Thus  the  fear  and  jealousy 
which  had  been  inspired  by  the  colonial  governors  appointed 
by  England  resulted   in  the  creation  of  a  state  governor  so 

^New    Jersey,    New    York,    North    Carolina,    Pennsylvania    (1790), 
VirRinia. 

2 This  was  done  in  New  Jersey,  although  prohibited  by  Sect,  xxiii. 


STATE  CONSTITUTIONS  21 

weak  that  the  development  of  the  executive  office  has  been 
a  constant  adding  to  his  powers. 

In  every  state  constitution   the  legislature  was   given   the  (3)  The 

,  .  .J   legislature 

predominant  place.  As  has  been  seen,  in  some  states  it  assumed  ineariycon- 
the  prerogative  of  revising  the  constitution.  In  all  states  there 
were  few  limitations  to  its  power.  Only  in  Massachusetts 
was  the  governor  given  even  a  suspensive  veto.  In  all  the 
states  except  Georgia,  Pennsylvania,  and  Vermont  the  legisla- 
ture was  bicameral,  and  in  the  second  constitutions  of  those 
states  this  form  was  adopted.^ 

The  courts  were  practically  unchanged  from  colonial  times  (4)  judicial 

111  system 

except  that  the  judges  were  no  longer  named  by  the  crown. 
In  Delaware  and  Pennsylvania  they  were  appointed  by  the 
governor;  in  Maryland,  Massachusetts,  and  New  Hampshire 
by  the  governor  and  council ;  in  New  York  by  a  committee 
of  four  senators.  Judges  were  elected  by  the  legislature  in 
New  Jersey,  North  Carolina,  South  Carolina,  and  Virginia 
and  by  the  voters  in  Georgia. 

In  Connecticut  and  Rhode  Island  the  government  provided  Connecticut 
by  the  royal  charters  was  substantially  unchanged.  At  annual  i^und 
elections  the  people  chose  the  governor,  deputy  governor,  and 
a  bicameral  assembly.  The  assemblies  had  practically  all 
power,  supervising  the  activities  of  the  governor  and  electing 
the  judges.  Since  there  was  no  provision  for  the  amend- 
ment of  charters,  the  assemblies,  on  separation  from  Great 
Britain,  became  the  legal  source  of  all  the  powers  of  their 
respective  states. 

Fundamental  Principles  in  State  Constitutions" 
The  preambles  to  the  state  constitutions  express  the  idea  Popular 

,        ^  T  i       r    ii-      sovereignty 

of  popular  sovereignty  in  the  first  sentence.  In  most  01  the 
documents  the  first  words  of  the  preamble  are  "We  the 
people  ...  do  ordain  and  establish."  In  spite  of  the  fact 
that  the  first  state  constitutions  were  framed  by  revolutionary 

iThe  constitution  of  Vermont  provided  for  a  single-chambered  legis- 
lature, which  was  continued  until   1836. 

2  For  a  very  suggestive  and  concise  treatment  of  this  subject  see 
A.  N.  Holcombe,  State  Government  in  the  United  States,  pp.  21-40. 


2  2         STATE  AND  IMUNICIPAL  GOVERNMENT 

bodies  or  the  legislatures,  and  the  vast  majority  of  them  not 
submitted  to  the  people  for  ratification,  popular  sovereignty 
was  recognized  implicitly  and  explicitly  in  the  preambles  to 
the  second  revised  constitutions.  More  important  than  the 
extent  of  powers  exercised  by  the  legislatures  or  by  any  of 
the  instruments  of  government  was  the  recognition  that  in 
the  last  analysis  the  people,  not  the  legislature,  were  sovereign. 
Popular  sovereignty  asserted  in  state  constitutions  does  not 
mean  state  sovereignty,  but  the  power  of  the  people  to  make 
or  to  alter  the  frame  of  government  under  which  they  live.  It 
means  that  the  people  have  the  right  to  protect  themselves 
from  the  instruments  of  government  they  created  by  reserving 
to  themselves  the  rights  and  privileges  which  would  be  beyond 
the  power  of  the  government  to  touch.  It  means  that  the 
people,  not  the  legislature  nor  any  department  of  government, 
might  draw  upon  these  rights  and  privileges  and  thus  extend 
the  sphere  and  activities  of  the  government.  As  Professor  Hol- 
combe  well  says,  quoting  Lincoln,  "It  means  government  of 
the  people,  by  the  people,  and  for  the  people." 

Reservation       All  State  Constitutions  contain  a  bill  or  declaration  of  rights. 

the"pe"pie°  This  is  only  a  means  of  emphasizing  the  doctrine  of  popular 
sovereignty  and  of  placing  certain  rights  beyond  the  power 
of  the  state  governments  to  usurp.  It  might  be  argued,  as 
Hamilton  did  with  regard  to  the  first  ten  amendments  to  the 
Federal  Constitution,  that  such  bills  or  declarations  of  rights 
were  unnecessary,  since  the  governments  had  no  powers  other 
than  those  granted  them.  But  in  the  earlier  constitutions  there 
had  been  few  limitations  upon  the  powers  of  the  legislatures, 
and  the  states  were  well  advised  in  placing  certain  rights  of 
civil  liberty  beyond  the  possibility  of  legislative  control.  The 
rights  so  safeguarded  included  guarantees  of  life,  liberty, 
property,  and  happiness;  freedom  of  conscience,  speech,  press, 
and  assembly ;  habeas  corpus  and  the  judicial  rights  which 
had  developed  in  England ;  guarantees  against  unreasonable 
searches,  seizures,  imprisonment,  or  bail ;  and  the  right  to 
"reform,  alter,  or  abolish  forms  of  government."  Since  most 
of  these  guarantees  are  repealed  in  the  Federal  Constitution 
as  limitations  u|)(tn  the  federal  government  or  upon  the  states. 


STATE  CONSTITUTIONS  23 

the  citizens  of  the  American  states  are  protected  in  their 
fundamental  privileges  against  the  action  of  both  state  and 
federal  governments  and,  by  the  Fourteenth  Amendment,  even 
against  action  by  the  majority  of  the  people  of  the  state. 

Another  fundamental  principle  of  the  state  constitutions  is  supremacy 
the  supremacy  of  law.  This  was  not  an  American  invention,  °^  '^^ 
but  a  heritage  directly  from  England.  The  rule  of  law  in 
England^  means,  first,  that  no  man  shall  be  punished  except 
for  a  distinct  breach  of  law  established  in  the  ordinary  legal 
manner  before  the  ordinary  courts.  In  the  second  place,  it 
means  that  all  persons,  whether  officials  or  not,  are  subject  to 
the  law.  As  expressed  in  the  constitution  of  Massachusetts, 
it  signifies  "that  all  shall  be  governed  by  certain  laws  for  the 
common  good."-  Or,  as  it  is  expressed  more  at  length  in  the 
Declaration  of  Rights,  "each  individual  of  the  society  has  a 
right  to  be  protected  by  it  in  the  enjoyment  of  his  life,  liberty, 
and  property,  according  to  standing  laws."^  Law  includes  in 
state  governments  not  merely  the  by-laws  and  ordinances  of 
subordinate  lawmaking  bodies  but  the  statutes  passed  by  the 
state  legislatures.  Even  more,  it  embraces  the  constitution 
itself,  which  is  the  supreme  law  within  the  state.  Concretely, 
a  law  is  a  rule  which  the  courts  will  enforce.  But  in  the  case 
of  a  conflict  of  laws  the  courts  will  unhesitatingly  enforce  the 
higher  law.  Thus,  for  example,  in  a  conflict  between  an  act 
of  the  legislature  and  a  principle  of  the  constitution,  the  courts 
will  without  fail  enforce  the  constitution  and  declare  such  an 
act  "unconstitutional  and  void."* 

If,  however,  law. is  simply  the  rule  which  the  courts  enforce.  The  courts 
popular  sovereignty  would  be  denied  and  the  supremacy  of  popJuar^° 
the  judiciary  would  be  established.    From  earliest   times   all  sovereignty 
decisions  of  the  judges  have  been  subject  to  alteration,  either 
by  the  passing  of  a  statute  or  by  the  adoption  of  a  constitu- 
tional amendment.    The  ultimate  sanction  for  the  rules  which 
the  courts  enforce  and  for  the  supremacy  of  law  is  not  to  be 

^A.  V.  Dicey,  The  Law  of  the  Constitution,  Part  II,  chap.  iv. 

2  Preamble  to  the  Constitution  of  Massachusetts. 

^Article  X. 

^See  Everett  Kimball,  National  Government,  pp.  16-17,  for  examples. 


24        STATE  AND  MUNICIPAL  GOVERNMENT 

found  unchangeable  for  all  time  in  the  principles  of  English 
common  law,  the  acts  of  the  legislatures,  or  the  dogmas  of  the 
constitutions,  but  is  in  the  final  expression  of  the  popular  will. 
Separation        All    the    early   state    constitutions   either   implicitly   or    ex- 
govemment  plicitly  adopted  the  principle  of  the  separation  of  the  powers 
of  government.    The  idea  that  there  were  three  distinct  func- 
tions of  government — legislative,  executive,  and  judicial — was 
stated  by   Montesquieu.^    In  colonial   times   the  citizens  had 
regarded  the  possession  of  legislative  power  by  their  assemblies 
as  one  of  their  most  successful  weapons  against  the  exercise  of 
the   arbitrary    power    of    the    governor.     But    neither   in    the 
colonial  charters  nor   in  the  constitutional  practice  of  Great 
Britain  was  there  an  absolute  and  complete  separation  of  the 
executive  and  legislative  powers,  nor  is  such  division  possible, 
separation        Nevertheless,  in  the  Virginia  constitution  of  1776  the  prin- 
expressedin  ciple  was  expressed  in  these  words:  ''That  the  legislative  and 
stituti^ons     executive  powers  of  the  State  should  be  separate  and  distinct 
from  the  judiciary."-    In  the  Massachusetts  constitution  of 
1780  it  is  amplified  as  follows: 

In  the  government  of  this  commonwealth,  the  legislative  depart- 
ment shall  never  exercise  the  executive  and  judicial  powers,  or  either 
of  them  :  the  executive  shall  never  exercise  the  legislative  and  judi- 
cial powers,  or  either  of  them  :  the  judicial  shall  never  exercise  the 
legislative  and  executive  powers,  or  either  of  them  :  to  the  end  it 
may  be  a  government  of  laws  and  not  of  men.^ 

Separation        But  howcver  explicitly  stated,  the  division  was  not  absolute 

not  absolute   .  ..-,1  f-»ri  /       r,    \ 

m  any  state  constitution.  In  that  of  Massachusetts  (1780) 
and  of  New  York  (1777)  the  powers  and  functions  of  the 
different  departments  were  clearly  defined,  but  each  depart- 
ment, in  the  distribution  of  powers  and  functions,  received 
powers  and  duties  of  all  three  kinds.  Thus,  in  New  York  the 
legislature  exercised,  through  the  power  of  impeachment  by 
the  lower  house,  some  judicial  authority,  and  four  members 
of  the  upper  house  chosen  by  the  lower  formed  the  council  of 

1  Spirit  of  I.iiws,  Bk.  XI,  chap.  vi. 
^Bill  of  Rights,  Sect.  v. 
3Dtclarali()ii  of  Rights,  Article  XXX. 


STATE  CONSTITUTIONS  25 

appointment  which  shared  some  of  the  governor's  executive 
power.  The  governor,  through  his  right  to  convene  and  pro- 
rogue the  legislature  and  by  messages  to  call  its  attention  to 
important  matters,  exercised  legislative  control  to  some  extent. 
While  acting  with  the  judges  as  a  council  of  revision  upon 
the  acts  of  the  legislature,  he  had  exercised  some  judicial 
power.  In  the  other  states  there  was  almost  frank  legislative 
supremacy,  and  the  theoretical  principle  of  the  separation  of 
departments  seems  of  little  value. 

Nevertheless  the  principle  remained.    The  executive  had  no  The  actual 
power  by  ordinance  to  make  the  laws  nor  the  legislature  to  separation 
enforce  them.    Separation  of  powers  does  not  require  that  the  °^  powers 
three  departments  should  be  entirely  unconnected  with  each 
other,  but,  as  was  later  expounded  in  "The  Federalist,"  it 
meant  that  the  whole  power  of  one  department  should  not  be 
exercised  by  the  same  body  which  possessed  the  whole  power 
of  another  department.^    Stated  in  this  way,  the  division  of 
powers  as  expressed  in  state  constitutions  was  a  wholesome 
restraint   upon   the   danger   that   any  one   department   might 
misrepresent  the  popular  will  and  subvert  the  rule  of  law. 

The  principle  of  checks  and  balances,  which  was  fully  de-  Thedoc- 
veloped  in  the  Federal  Constitution  and  in  the  later  state  checks  and 
constitutions,  did  not  appear  in  the  original  constitutions  of  balances 
the  states.    As  has  been  pointed  out,   legislative  supremacy 
was  quite  generally  the  rule.    Nevertheless,  even  in  the  first 
constitutions,  through  the  granting  of  powers  to  different  de- 
partments which  were  not  similarly  constituted,  an  imperfect 
set  of  checks  and  balances  was  provided.    The  development 
of  the  powers  of  the  judiciary,  however,  made  this  system 
more  complete. 

From  1778  the  judiciary  had  regarded  the  state  constitu-  judicial 

review 

tions  as  limits  set  upon  the  power  of  the  legislatures.    In  the  strength- 
enforcement   of    the   constitutions    the   courts   prevented   the  p^fn^p^le  of 
different  departments   from   exercising  powers  and   functions  separation 
not  granted  to  them  and  kept  them  within  the  bounds  estab-  and  popular 

sovereifirntv 

lished  by  the  fundamental  law.    This  was  the  logical  develop- 
ment of  the  rule  of  law,  which,  if  impartially  enforced,  applied 

iSee  "The  Federalist,"  No.  47. 


2  6        STATE  AND  INIUXICIPAL  GOVERNISIEXT 

not  simply  to  individuals  but  to  instruments  of  government. 

It  did  not  constitute,  however,  the  judiciary  as  the  sole  and 

final  arbitrator.    The  people  themselves,  through  their  power 

to  amend  the  constitution,  were  able  to  control  or  alter  the 

decision   of    the   judges.     Yet   until    the   people   act    through 

their   power   to   amend   the  constitution    the  decision   of   the 

judges  is  final   in  the  interpretation   and   the   application   of 

the  constitution.^ 

ciassifica-         State  Constitutions  may  be  variously  classified — chronologi- 

constitu-      cally,  geographically,  or  by  the  character  of  the  governments 

*^°°^  they  establish.    Professor  Dealey  has  offered  a  classification 

which  seems  suggestive :  - 

The  six  constitutions  of  the  New  England  states  of  which  that  of 
Massachusetts  is  the  best ;  seven  constitutions  formulated  during  the 
twenty-five  years  preceding  the  close  of  the  Civil  War,  these  are 
democratic  in  spirit  but  are  in  need  of  revision ;  twenty-five  con- 
stitutions made  or  revised  since  the  war,  representing  readjustments 
necessitated  through  reconstruction  or  through  newer  economic  con- 
ditions ;  and  finally  the  ten  constitutions  of  the  new  mining  or  agri- 
cultural states  west  of  the  Mississippi,  admitted  since  i88g.  The 
radicalism  prominent  in  this  section  of  the  country  may  best  be  seen 
in  the  constitutions  of  Oklahoma  and  Arizona  and  in  the  many 
amendments  introduced  since  1902  into  the  constitutions  of  Oregon 
and  California. 

Similarity         All   these  constitutions   have  certain   features  in   common. 

stituiions  The  framework  of  government  is  everywhere  the  same,  al- 
though there  are  differences  in  the  details  of  its  composition. 
All  the  states  provide  for  the  three  departments  of  government 
and  pretend  to  adhere  to  the  principle  of  the  separation  of 

^Because  of  the  difficulty  of  amendlnp;  certain  conslitutions  and  thus 
bringing  decisions  of  the  judiciary  more  quickly  in  harmony  with  the 
desire  of  the  people,  the  doctrine  of  the  recall  of  judicial  decisions  was 
suggested  by  ex-President  Roosevelt  in  IQ12.  This  had  the  advantage 
of  making  it  possible  for  the  people  to  correct  an  unpopular  decision  in 
a  particular  case  more  quickly  than  could  be  done  by  a  constitutional 
amendment.  It  had  the  grave  disadvantage,  however,  of  acting  on  a 
particular  case  rather  than  of  establishing  a  constitutional  principle,  as 
is  done  by  an  amendment   (sec  pages  31-36). 

'Cyclopedia  of  American  Government,  Vol.  I,  p.  438. 


STATE  CONSTITUTIONS  27 

powers.  All  constitutions  contain  a  bill  or  declaration  of 
rights  by  which  certain  matters  are  reserved  to  the  people  and 
put  beyond  the  power  of  the  legislature  to  alter.  All  are  alike 
in  the  process  of  development,  which  tends  to  place  limitations 
upon  the  legislature,  to  increase  the  authority  of  the  executive, 
and  to  transfer  powers  from  both  the  executive  and  the  legis- 
lature to  the  electorate.  To  the  newer  and  more  radical  con- 
stitutions, and  even  to  the  older  ones,  amendments  have  been 
added  which  carry  the  doctrine  of  popular  sovereignty  to  its 
logical  extreme  and  enable  the  people,  by  means  of  the  initia- 
tive and  referendum,  to  make  their  will  immediately  effective. 

All  constitutions  have  grown  longer.    Framed  at  the  end  of  increasing 

.    ,  ,  ,  •        •  !■    -K'  -r  length  of 

the  eighteenth  century,  the  constitution  of  New  Jersey  con-  constitu- 
tained  but  twenty-five  hundred  words.  In  the  first  years  of  the  tionsdueto: 
twentieth  century  Oklahoma  adopted  a  constitution  of  over  fifty 
thousand  words.  The  reason  for  this  increasing  length  was 
threefold.  Legislative  supremacy  proved  unsatisfactory.  The 
people  of  the  states  came  to  distrust  and  fear  legislative  action 
rather  than  to  revere  and  place  confidence  in  the  representa- 
tives they  had  elected.  Consequently,  at  almost  every  revision 
of  any  constitution  additional  restrictions  are  placed  upon  the  d)  Restric- 

..,.,.  •jjj     tions  on 

legislature.  Not  only  was  positive  legislative  action  dreaded,  legislatures 
but  the  constitutional  conventions  feared  that  the  legislatures 
would  not  take  the  action  they  desired.  As  a  result  matters 
are  found  in  the  constitutions  which  would  more  properly  be 
expressed  in  statutes.  Thus,  for  example,  the  constitution  of 
Oklahoma  contains  long  sections  regarding  corporations  and 
has  more  of  the  characteristics  of  a  code  of  laws  than  of  a 
framework  of  government. 

A  second  reason  for  the  longer  constitutions  is  found  in  (2)  changed 
the  changed  social  and  economic  life  of  the  state.  New  kinds 
of  wealth  have  been  created;  new  evils  have  developed.  To 
protect  or  to  subject  these  to  the  control  of  the  state  and  to 
allow  the  state  to  cope  with  these  fresh  conditions,  additional 
powers  have  been  granted  and  private  property  and  personal 
liberty  subjected  to  new  restraints.  Finally,  the  growing  com- 
plexity of  modern  life  and  the  desire  to  submit  all  phases  of 
this  to  popular  control  has  led  to  the  creation  of  numerous 


economic 
conditions 


28 


STATE  AND  IMUXICIPAL  GOVERNISIEXT 


Long  and 
detailed 
constitu- 
tions tend 
to  break 
down  the 
distinction 
between 
constitu- 
tional and 
statutory 
law 


Contents  of 
a  typical 
state  con- 
stitution: 

(i)  The 
preamble 

(2)  Ratifi- 
cation 
clause 

(3)  Tem- 
porary 
provisions 

(4)  Bill  of 
rights 

[Traditional 
bills  of 
rights] 


officers  and  officials  with  duties  and  functions  which  required 
extended  definition. 

The  tendency  to  increase  the  length  of  state  constitutions 
and  to  include  in  them  materials  which  might  more  properly 
be  found  in  statutes  is  unfortunate.  It  not  merely  confuses 
the  distinction  between  fundamental  law  and  statutory  enact- 
ments but  frequently  puts  into  permanent  form  measures 
which  are  of  temporary  importance  or  whose  unimportance  is 
not  foreseen.  Moreover,  the  process  of  constitutional  amend- 
ment in  all  states  is  more  difficult  than  legislative  enactment, 
and  in  some  states  it  is  even  painfully  slow.  Thus,  it  may 
seriously  hamper  a  state  in  a  crisis  and  prevent  the  immediate 
exercise  of  popular  control. 

A  state  constitution  usually  consists  of  nine  parts: 

The  preamble  and  enacting  clause  stands  first  and  contains 
the  assertion  of  the  doctrine  of  popular  sovereignty,  in  that  the 
constitution  is  ordained  and  established  by  the  people  of  the  state. 

A  ratification  clause  follows  with  the  signatures  of  the  officers 
of  the  ratifying  or  formulating  authority. 

Oftentimes  there  is  a  schedule  of  temporary  provisions. 

A  bill  of  rights  is  invariable  in  the  later  constitutions,  and 
tends,  like  the  constitutions  themselves,  to  increase  in  length. 
Originally  a  typical  bill  of  rights  contained  clauses  protecting 
the  private  rights  of  the  individual,  which  were  inherited  from 
the  constitutional  development  of  England.  These  bills  usu- 
ally declared  for  the  freedom,  equality,  and  independence  of 
the  citizens;,  popular  sovereignty;  the  right  of  the  people  to 
change  and  alter  their  government ;  the  separation  of  the 
departments  of  government ;  the  right  of  the  individual  to  the 
judicial  privileges  which  were  traditional  in  English  procedure 
— namely,  to  demand  the  cause  and  nature  of  his  accusation, 
to  be  confronted  with  his  accusers,  to  obtain  evidence  in  his 
own  behalf,  to  have  a  jury  trial ;  freedom  of  press  and  of 
conscience ;  the  right  to  bear  arms.  They  also  contained  pro- 
hibitions against  the  suspension  of  laws  without  the  consent  of 
the  representatives,  against  excessive  bail,  fines,  and  cruel  and 
unusual   punishments,   and   against  general   search   warrants.^ 

'Drawn  from  llu-  HiU  of  RIkHIs  of  the  constitution  of  Virginia,  1776. 


STATE  CONSTITUTIONS  29 

In  addition  to  these  fundamental  and  traditional  rights,  the  [Modem 
more  recent  constitutions  sanction  new  developments  in  judi-  to  bins  of 
cial  procedure.    For   example,   in   Oklahoma  prosecutions   for  "^htsj 
felony  or  misdemeanor   upon  information,  as  well  as  indict- 
ment, are  sanctioned ;   in  certain  courts  the  jury  may  consist 
of  but  six  nien ;  and  in  civil  cases,  and  criminal  cases  involving 
crimes  less  than  felony,  a  verdict  of  three  quarters  of  the  jury 
is  sufficient. 

In  general,  private  property  is  carefully  guarded ;    yet  in  [Modem 

1       ,^,  ,    ,  ...  .  ,        .     attitude 

the  Oklahoma  constitution  the  state  may  engage  in  any  busi-  toward 
ness  except  agriculture,  while  in  the  forty-ninth  amendment  to  property! 
the  constitution  of  IMassachusetts,  adopted  in  191 8,  the  legisla- 
ture is  given  power,  on  making  just  compensation,  to  take 
lands  for  the  conservation,  development,  and  utilization  of 
the  agricultural,  mineral,  forest,  water,  and  other  natural 
resources.  In  Oklahoma  corporations  are  denied  several  privi- 
leges and  immunities  secured  to  natural  persons,  their  records 
are  subject  to  the  inquisitorial  power  of  the  state  in  unre- 
stricted searches,  and  their  officers  may  be  forced  to  give 
testimony  which  might  be  incriminatory. 

In  the  framework  of  government  the  constitution  provides  for  (5)  The 
the  establishment  of  the  three  departments  of  the  government,  government 
grants  them  their  powers,  and  prescribes  limitations  upon  the 
exercise  of  these  powers.  As  has  been  said,  in  all  the  states 
the  main  outlines  of  government  are  the  same,  although  there 
is  considerable  variation  in  details.  Under  this  head,  moreover, 
are  placed  the  provisions  for  rural,  county,  and  municipal  gov- 
ernment, more  or  less  explicitly  framed.  The  suffrage  clause 
and  any  provisions  concerning  the  election  of  state  officials  also 
are  included.  Logically,  as  is  shown  by  the  recent  rearrange- 
ment of  the  Massachusetts  constitution,  the  sections  providing 
for  the  use  of  the  initiative  and  referendum  should  also  be 
confined  under  this  head. 

The  financial  clauses  of  the  constitution  contain  the  funda-  (6)  Finan- 
mental  limitations  upon  the  financial  power  of  the  state  gov- 
ernment.   Here  are  found  the  restrictions  upon  the  use  of  the 
credit  of  the  state,  limitations  upon  the  state  debt,  and,  per- 
haps most  important  of  all,  the  provisions  concerning  taxation. 


30 


STATE  AND  IMUNICIPAL  GOVERXMEXT 


(7)  Corpora- 
tions 


(8)  Labor 


(g)  Miscel- 
laneous 


(10)  The 

amending 

clause 


Corporations  are  dealt  with  in  an  increasing  number  of 
sections.  In  the  older  constitutions  this  is  disposed  of  with 
comparative  brevity,  but  in  the  newer  constitutions — particu- 
larly those  of  a  more  radical  nature — corporations  are  sub- 
jected to  most  minute  provisions  for  their  regulation.  For 
example,  in  the  constitution  of  Oklahoma  fourteen  pages  are 
devoted  to  the  regulation  of  corporations.  In  constitutions  of 
this  type  regulatory  commissions  are  established  with  power 
to  inspect  and  supervise  the  activities  of  corporations,  to  pre- 
scribe the  rates  for  certain  kinds  of  services,  and  to  supervise 
the  issuance  of  stock  and  securities. 

Labor  is  often  the  subject  of  several  constitutional  provi- 
sions. In  some  states  departments  of  labor  are  established, 
the  eight-hour  day  stipulated  in  all  public  employments,  and 
permissive  directions  given  to  the  legislature  to  pass  laws 
concerning  the  health  and  safety  of  labor,  particularly  in  the 
mines  and  railroads. 

State  constitutions  have  always  contained  a  large  number 
of  miscellaneous  sections.  Even  the  early  constitutions  con- 
tained provisions  for  the  state  educational  system,  but  the 
more  modern  instruments  not  only  provide  for  a  school  sys- 
tem, but  in  some  of  the  Western  states  set  aside  certain 
revenues  for  the  maintenance  of  this  system.  Under  this 
heading  are  classified  the  provisions  concerning  the  manufac- 
ture and  sale  of  intoxicating  liquors,  the  maintenance  of  the 
poor,  the  safeguarding  of  public  health,  the  provisions  for 
charitable  institutions,  and  the  control  of  public  property. 

The  last  important  section  of  a  typical  state  constitution 
contains  the  methods  of  amendment  and  revision.  These  are 
of  vital  importance.  As  has  been  pointed  out,  some  of  the 
Revolutionary  constitutions  had  no  such  clauses,  and  in  absence 
of  them  the  legislature  either  itself  amended  the  constitution 
or  supplied  the  means  by  which  the  constitution  was  revised 
or  amended  through  the  constitutional  convention.  If,  how- 
ever, the  fundamental  principle  of  popular  sovereignty  rather 
than  legislative  supremacy  is  to  be  maintained,  it  is  necessary 
that  the  provisions  for  constitutional  amendment  and  revision 
should  be  most  carefully  expressed. 


STATE  CONSTITUTIONS  31 

At    the   outset   a    distinction    is    sometimes    made    between  constitu- 
amendment  and  revision.^    The  distinction  is  one  both  of  kind  revision  and 
and  of  degree.    A  revision  is  generally  applied  to  the  work  of  ^™^°"^'°^°t 
a  constitutional   convention,  which  either  drafts   an   entirely 
new  constitution  or  proposes  a  series  of  amendments  that  in 
effect    formulate    a    new    instrument    of    government.     It    is 
entirely   possible,   however,    that   a   constitutional    convention 
may  propose   only   a   few  amendments   dealing   with   details, 
rather  than  attempt  to  remake  the  constitution.    Amendment 
is  the  term  usually  applied  to  the  proposal  or  proposals  to 
change  certain  provisions  and  details  of  the  constitution  while 
leaving  the  general  instrument  intact. 

Most  states  provide  for  constitutional  amendment  by  leg-  Amend- 
islative  process.  In  New  Hampshire  amendments  may  be 
proposed  only  through  the  medium  of  a  constitutional  con- 
vention. Legislative  amendment  was  allowed  in  the  early  state 
constitutions,  provided,  in  general,  that  the  same  amendment 
was  passed  by  two  successive  legislatures.  Delaware  alone 
continues  to  adhere  to  this  method  and  does  not  require  a 
popular  referendum.  In  all  other  states  the  steps  in  the 
process  are  proposal  in  the  legislature,  adoption  by  one  or 
more  consecutive  legislatures,  and  acceptance  by  the  people 
at  an  election.  Sixteen  states  require  the  action  of  two  legisla- 
tures ;  in  thirty-two  the  action  of  one  is  sufficient.  In  those 
states  where  the  sessions  of  the  legislature  are  held  each  year 
there  is  little  objection  to  the  requirement  that  two  legislatures 
must  pass  upon  an  amendment  before  submitting  it  to  the 
people,  but  with  the  trend  toward  biennial  sessions  a  serious 
objection  arises.  Two  or  three  years  may  elapse  between  the 
proposal  of  the  amendment  and  the  popular  referendum. 
Taking  into  consideration,  in  addition,  the  fact  that  the  char- 
acter of  the  constitutions  has  changed  and  that  they  now 
include  great  masses  of  legislation,  the  requirement  of  accept- 
ance by  two  legislatures  prevents  the  people  from  altering  or 

repealing  a  clause  or  provision  which  emergency  has  proved 
.<•        --  - 
ij.  Q.  Dealey,  The  Growth  of  American  State  Constitutions,  chap.  xi. 
For   a   more   extended   treatment   see   W.    F.    Dodd,   The    Revision    and 
Amendment  of  State  Constitutions,  chap.  iv. 


32 


STATE  AND  MUNICIPAL  GOVERNIMENT 


Majority 
required 
in  the 
legislatures 

The  referen- 
dum on  the 
amendment 


Vote 

required  on 
referendum 
for  consti- 
tutional 
amend- 
ments 


Revision 


undesirable.^  It  should  be  added,  however,  that  since  the  initia- 
tive and  referendum  applies  in  many  states  to  constitutional 
amendments,   this  objection   is  more  theoretical   than  actual. 

Nineteen  states  require  only  a  majority  vote  of  the  legisla- 
ture for  amendments,  seventeen  require  a  two-thirds  vote,  and 
seven  a  three-fifths  vote.- 

In  Mississippi  and  South  Carolina — states  where  the  ap- 
proval of  two  legislatures  is  required — the  referendum  is 
placed  between  the  action  of  the  first  and  second  legislatures. 
This  gives  to  that  body,  rather  than  to  popular  choice,  the 
final  voice  in  accepting  the  amendments.  In  all  other  states 
except  Delaware,  where  the  referendum  is  not  used,  the  ap- 
proval of  the  voters  is  placed  after  legislative  action,  thus 
giving  the  people  the  final  decision. 

The  constitutions  in  thirty-three  states  require  that  amend- 
ments shall  be  approved  by  ''a  majority  of  those  voting 
thereon."  In  three  states  '  the  proposed  amendments  must  be 
ratified  by  a  majority  of  the  electors.  Nine  states'*  have  pro- 
visions which  require  a  majority  of  all  votes  cast  at  the  elec- 
tion at  which  the  amendment  is  submitted.  This  is  extremely 
difficult  to  obtain,  and  has  prevented  the  adoption  of  a  certain 
kind  of  amendment  and  led  to  curious  evasions  on  the  part  of 
some  states.^  Such  requirements  have  the  doubtful  advantage 
of  preserving  the  provisions  of  the  constitution  against  alteration 
by  a  small  section  of  the  people.  In  experience,  however,  this 
is  outweighed  by  the  difficulty  of  obtaining  the  requisite  major- 
ity on  all  amendments.  It  means,  therefore,  that  constitutions 
of  this  sort  are  for  all  practical  purposes  unamendable  in  details. 

Most  of  the  constitutions  provide  for  revision  by  a  constitu- 
tional convention.''    INIassachusetts  was  the  first  state  to  try 

1  J.  Q.  Dealey,  The  Growth  of  American  State  Constitutions,  p.  140. 

^Ibid.  p.  141. 

•''Idaho,  Indiana.  Wyoming. 

■•Alabama,  Arkansas,  Illinois,  Minnesota,  Mississippi,  Nebraska,  Ohio, 
Oklahoma,  Tennessee. 

''Sec  W.  F.  Dodd,  The  Revision  and  .Amendment  of  State  Constitu- 
tions, pp.  185-195. 

•■The  following  states  make  no  such  provision:  Arkansas,  Connecticut, 
Indiana,  Louisiana,  Massachusetts,  Mississippi,  New  Jersey,  Nortli 
Dakota,  Pcnnsvlvania,  Rhode  Island,  Texas,  and  Vermont. 


STATE  CONSTITUTIOXS  33 

this  plan,  which  was  soon  adopted  by  the  other  states.  Even 
those  states  whose  constitutions  did  not  make  such  provision 
have  utilized  this  method.  In  fact,  it  is  generally  accepted  that 
the  legislature  of  a  state  may,  even  in  the  absence  of  constitu- 
tional provisions,  submit  to  the  people  the  question  of  whether 
a  constitutional  convention  shall  be  summoned  to  revise  the 
constitution.  Certain  states,  however,  require  the  submission 
of  such  a  question  at  specific  intervals,^  the  underlying  theory 
being  that  at  least  once  in  every  generation  the  people  should 
pass  upon  the  question  of  revising  their  fundamental  frame 
of  government. 

The  constitutions  of  some  states  make  elaborate  provisions  composition 
concerning  the  composition  of  the  convention ;  in  others  this  convention 
is  left  to  the  legislature.-  Failing  such  provisions,  the  legis- 
lature exercises  the  power  of  determining  the  composition  of 
the  convention.  In  some  instances  its  composition  and  the 
purpose  for  which  it  is  summoned  are  made  a  part  of  the 
act  submitted  to  the  people  for  approval.  In  others  popular 
approval  is  asked  only  upon  the  question  of  summoning  a 
convention;  this  being  granted,  the  legislature  has  full  power 
to  determine  its  composition.  ^Modern  constitutional  conven- 
tions usually  attempt  to  represent  the  small  localities,  such  as 
the  representative  districts  of  the  state  legislature;  the  larger 
districts,  like  the  counties,  state  senatorial,  or  even  congres- 
sional districts;  and,  finally,  the  state  at  large.  These  dele- 
gates at  large,  who  are  chosen  by  the  majority  of  the  voters 
of  the  entire  state,  are  generally  recognized  as  the  leaders  of 
the  convention. 

Two  theories  have  been  put  forward  and  acted  upon  con-  Powers  of 
cerning  the  powers  of  the  convention.    According  to  the  first  the  tutionai 
constitutional  convention  is  a  body  subordinate  to  the  state 
legislature,  so  that  the  state  legislature  may,  at  its  discretion, 

iNew  Hampshire,  every-  seven  years;  Iowa,  every  ten;  Michigan, 
every  sixteen  ;  Maryland,  New  York,  Ohio,  Oklahoma,  every  twenty. 
In  Iowa,  Michigan,  New  York,  Ohio,  and  Oklahoma  the  legislature  is 
given  discretion  to  submit  the  question  at  other  times  than  the  periods 
stated  in  the  constitution. 

-See  W.  F.  Dodd,  The  Revision  and  Amendment  of  State  Constitu- 
tions, and  R.  S.  Hoar,  Constitutional  Conventions. 


convention 


34        STATE  AND  MUNICIPAL  GOVERNMENT 

prescribe  its  composition  and  limit  its  powers.  It  may  deter- 
mine what  matters  shall  be  considered  by  the  convention  and 
how  these  shall  be  submitted  to  the  people.  This  doctrine 
was  asserted  by  the  Pennsylvania  supreme  court  in  1874,  but 
was  not  followed  by  the  last  convention  called  in  that  state. 
By  the  second  theory  the  constitutional  convention,  since  it 
represents  the  sovereignty  of  the  people,  is  unfettered  by 
any  legislative  acts.  This  is  the  more  generally  accepted  doc- 
trine. Legislatures,  however,  have  not  generally  violated  the 
proper  legislative  acts  which  were  necessary  for  the  summoning 
of  the  convention,  for  its  organization,  or  for  the  submission 
of  its  work  for  approval.  Conventions,  on  the  other  hand, 
have  rarely  attempted  to  exercise  functions  which  belonged 
obviously  to  the  legislative  department,  although  they  have 
not  hesitated  to  assume  powers  properly  belonging  to  them 
even  in  defiance  of  legislative  enactment. 
Limiutions  Constitutional  conventions  are  not  absolutely  sovereign. 
tutionar  '"  They  are  limited  explicitly  by  the  provisions  of  the  Federal 
conventions  Constitution,  treaties,  and  statutes,  and  by  the  constitution  of 
the  state. ^  There  are,  moreover,  certain  implied  limitations ; 
for  example,  that  the  convention  should  not  exercise  legislative 
or  judicial  power;  that  in  general,  though  sovereign  for  its  pur- 
pose, it  should  not  transgress  the  fundamental  principles  of 
state  government. 
The  consti-  On  the  assembling  of  the  convention  a  chairman  or  presiding 
conveirtion  officer  is  choscn  who  has  many  of  the  powers  of  the  speaker 
at  work  ^f  ^^^  legislature.  He  possesses  the  obvious  parliamentary 
control  over  recognition  and  the  preservation  of  order.  In 
some  conventions,  as,  for  example,  the  INIassachusetts  conven- 
tion of  191 7,  he  is  given  the  power  to  appoint  committees. 
Whether  the  chairman  appoints  the  committees  or  not  the  con- 
vention is  divided  into  committees  to  whom  are  referred  the 
multitudinous  proposals  for  amendments.  These  committees 
make  more  or  less  careful  investigations  and  hold  hearings, 
and  finally  present  their  reports  to  the  convention.    In  many 

^In  Virginia  constitutional  conventions  in  1830,  1850,  i86q,  and  1Q02 
did  not  submit  their  work  to  the  electorate  prescribed  by  the  constitu- 
tions under  which  they  were  called,  but  these  cases  are  exceptional. 


STATE  CONSITTUTIONS  35 

states  these  are  discussed  in  committees  of  the  whole,  where 
they  are  subject  to  debate  and  amendment.  They  are  finally 
reported  to  the  convention  for  adoption  or  rejection.  In  some 
conventions  there  is  a  general  committee  on  revision  or  re- 
arrangement. Particularly  is  this  necessary  when  numerous 
and  fundamental  provisions  are  added  to  an  old  document. 
The  amendments  adopted  by  the  convention  are  then  almost 
universally  referred  to  the  people  for  approval  at  some  general 
election.  Some  states,  however,  provide  that  constitutional 
amendments  should  be  submitted  only  at  special  elections. 
This  has  the  advantage  of  concentrating  the  attention  of  the 
voters  upon  the  proposed  amendments,  but  it  has  the  disad- 
vantage that  such  special  elections  may  attract  fewer  voters 
than  ordinarily  come  out  for  the  regular  party  elections. 

A  third  method  of  constitutional  amendment  which  may  be  The  initia- 
employed  is  the  popular  initiative  followed  by  the  referendum,  referendum 
Thirteen  states^  possess  the  full  initiative  and  referendum  on 
constitutional  questions.  In  some  of  these  states  the  initiative 
petition  requires  a  larger  number  of  signatures  than  a  petition 
for  an  ordinary  law.  In  others  the  proposed  amendment  has  to 
run  the  gantlet  of  the  legislature.  In  some,  however,  the  people 
may  initiate  a  constitutional  amendment  by  the  ordinary 
lawmaking  process  and  approve  it  by  a  popular  referendum 
accepted  by  a  majority  of  those  voting  thereon. 

The  amendment  to  the  Massachusetts  constitution  adopted  The  Massa- 
in  19 1 8,  while  not  typical  of  the  ordinary  procedure,  may  be^pi^n 
taken  as  an  attempt  to  allow  for  the  expression  of  popular  1/ 
opinion  while  safeguarding  the  permanency  of  the  constitution. 
By  this  provision  an  amendment  may  be  initiated  on  a  petition 
signed  by  twenty-five  thousand  qualified  voters.    It  then  must 
be  submitted  to  a  joint  session  of  the  house  of  representatives 
and  senate,   where  it  must   receive  the  approval   of  at  least 
one  fourth  of  the  elected  members  of  two  successive  legisla- 
tures.   It  is  then  submitted  to  the  people  and  becomes  a  law, 
if  approved  by  three  fourths  of  those  voting  thereon. 

1  Arizona,  Arkansas,  California,  Colorado,  Massachusetts,  Michigan, 
Mississippi,  Missouri,  Nebraska,  North  Dakota,  Ohio,  Oklahoma,  and 
Oregon. 


36        STATE  AND  MUNICIPAL  GOVERNMENT 

It  is  a  general  fear  that  the  use  of  the  initiative  for  constitu- 
tional amendments  would  still  further  break  down  the  distinc- 
tion between  statutory  and  constitutional  law.  From  an 
analysis  of  the  amendments  adopted,  such  a  contention  cannot 
be  maintained.^  It  was  feared,  moreover,  that  the  people, 
undeterred  by  the  legislature  or  a  constitutional  convention, 
would  attempt  radical  changes  in  the  form  of  state  government 
or  would  write  into  the  constitution  too  liberal  provisions. 
Experience  has  shown  that  this  is  not  the  case.  The  proposed 
radical  revision  of  the  Oregon  constitution  in  1912-1913  was 
overwhelmingly  defeated.  Of  the  proposed  amendments  to 
the  constitution  of  California  only  the  recall  of  judges  might 
be  considered  unusual  or  revolutionary.  In  fact,  no  amend- 
ment proposed  by  initiative  has  been  adopted  for  which  a 
precedent  might  not  be  found  in  amendments  proposed  by 
conventions  or  legislatures.  Theoretically,  perhaps,  consider- 
ing the  ease  with  which  signatures  are  obtained  for  petitions 
and  the  lack  of  interest  which  voters  display  in  marking  their 
ballots,  great  evils  might  be  anticipated.  Experience,  however, 
has  not  warranted  such  a  gloomy  foreboding. 

^See  A.  N.  Holcombe,  State  Government  in  the  United  States,  pp.  404- 
411,  428-444,  for  an  excellent  discussion  of  the  use  of  initiative  and  refer- 
endum for  constitutional  amendments. 


PART  II 
THE  POLITICAL  SYSTEM  OF  THE  STATES 


CHAPTER  III 

THE  ORGANIZATION  OF  THE  ELECTORATE 

Lincoln  defined  popular  sovereignty  as  a  ''government  of  The 
the  people,  by  the  people,  and  for  the  people."  The  popular 
will,  however,  as  expressed  by  the  people  has  never  been  ex- 
pressed by  all  the  people.  In  every  state  it  is  a  group  of 
people  who  are  chosen  to  express  the  will  of  the  entire  state. 
This  group  is  the  electorate.  The  electorate  possesses  the  right 
to  vote,  or  the  suffrage,  by  which  the  popular  will  is  officially 
and  legally  manifested.  The  right  to  vote,  therefore,  is  not  a 
right  possessed  by  all  citizens  of  a  state  or  a  privilege  granted 
to  certain  citizens  of  a  state ;  it  is  a  duty  or  a  function  which 
certain  citizens  of  the  state  are  chosen  to  perform  for  all  the 
people.  Thus,  even  in  the  elections  the  voters  are  the  repre- 
sentatives of  the  whole  body  of  the  people,  as  in  lawmaking 
the  legislators  represent  the  voters. 

At  all  times  in  the  United  States  the  suffrage,  or  the  right  original 
to  vote,  has  been  restricted.    Even  the  declarations  of  rights  ^oathl  '°°^ 
which  preceded  the  first  state  constitutions,  while  declaring  ^"^Sd 
that  elections  should  be  free,  were  equally  insistent  that  par- 
ticipation in   them  should   be   restricted.    Thus   Pennsylvania 
and  Virginia  restricted  the  franchise  to  "free  men  having  a 
sufficient  evident   common   interest   with,  and   attachment  to 
the  community."^    The  Massachusetts  declaration  allowed  the 
inhabitants    to    establish    qualifications    by    their    frame    of 
government.    In  all  the  states  during  the  eighteenth  century 
this  right  was  jealously  guarded — in  most  of  them  by  property 
qualifications,  and  in  all  by  some  test  of  fitness.    The  nine- 
teenth century   initiated  a   gradually   increasing   extension   of 
the  suffrage   and   removal   of   the   restrictions,   and    this  was 
accelerated   by    the   Civil    War    amendments    to    the    Federal 

1  Pennsylvania  Declaration  of  Riglits,  Article  VII. 

39 


40        STATE  AND  MUNICIPAL  GOVERX:\IENT 


states  may- 
prescribe 
suffrage 
qualifica- 
tions 


Present 
qualifica- 
tions for  the 
suffrage : 
(I)  Age 


(3)  Sex 


Constitution,  which  prohibited  restrictions  on  account  of  race, 
color,  or  previous  condition  of  servitude.  It  reached  its  logical 
culmination  in  the  adoption  of  the  Nineteenth  Amendment, 
which  prohibits  restrictions  of  suffrage  on  account  of  sex. 

Within  these  limits,  however,  the  states  are  free  to  act  and 
to  prescribe  such  qualifications  for  suffrage  as  they  may  see  fit. 
The  right  to  vote  is  not  a  right  of  United  States  citizenship.^ 
Therefore  a  state  may,  with  impunity,  deprive  a  United  States 
citizen  of  such  a  right,  provided  it  is  not  done  on  the  basis 
of  race,  color,  or  previous  condition  of  servitude.-  But  in  so 
doing,  a  state  subjects  itself  to  the  possibility  of  having  the 
basis  of  its  representation  in  Congress  reduced  in  the  propor- 
tion which  the  number  of  citizens  so  deprived  shall  bear  to 
the  whole  number  of  male  citizens  in  the  state.^  By  the  Nine- 
teenth Amendment  a  state  was  forbidden  to  deny  the  suf- 
frage on  account  of  sex,  and  Congress  was  given  power  to 
enforce  this. 

The  present  qualifications  for  suffrage  may  be  grouped 
under  six  main  headings : 

All  the  states  adopt  the  English  rule  of  fixing  the  age  limit 
at  twenty-one  years.  This  is  a  lower  age  than  is  placed  in  some 
European  countries,  where  it  is  felt  that  a  longer  political 
experience  should  be  required  of  a  voter;  but  in  no  country, 
except  the  new  German  Commonwealth,^  has  the  age  been 
fixed  at  a  lower  figure. 

At  first  all  states  limited  the  suffrage  to  males.  In  1869 
Wyoming  granted  suffrage  to  women ;  Colorado  followed  in 
1893  and  Idaho  and  Utah  in  1896.  Beginning  with  the  second 
decade  of  the  twentieth  century  the  movement  spread  more 
rapidly,  and  by  1920  included  twenty-nine  states.  Thus  far 
the  extension  of  the  franchise  to  women  had  come  entirely 
through  state  action  and  was  following  the  normal  course 
of  allowing  the  states  to  determine  their  own  qualifications 


^  Minor  v.  Ilappersell,  21  Wall.  162. 
^Amendment  XV. 
•■'  Amendment  XIV. 

'' Suffrage  is  extended  to  all  citizens,  irrespective  of  sex,  at  the  age  of 
twenty. 


THE  ORGANIZATION  OF  THE  ELECTORATE    41 

for  voting.  In  1920,  however,  the  Federal  Constitution  was 
amended  and  a  new  federal  restriction  placed  upon  the  states. 
Thus  the  states  lost  their  right  to  grant  or  withhold  suffrage 
on  the  basis  of  sex — a  right  which  certain  states  were  most 
anxious  to  retain. 

Theoretically  it  has  long  been  felt  by  many  that  there  was  [Reasons  for 
no  valid  reason  why  women  should  not  be  consulted  in  deter-  sion  of  the 
mining  the  popular  will.    The  changed  conditions  of  society  ^fmen]  *° 
and  the  changed  economic  status  of  women  made  it  desirable 
that  they  should  have  a  legally  recognized  opportunity  to  be 
formally  consulted.    The  extension  of  the  sphere  of  govern- 
ment activities  and   the  widening   of   the   conception   of   the 
duties  and  services  of  the  state  seemed  to  make  it  advisable 
for  the  state  to  consult  women  on  its  affairs.    The  experiences 
of  the  World  War  showed  that  women  were  capable,  practically 
as  well  as  theoretically,  of  performing  this  function.    Conse- 
quently, first  in  Europe  and  then  in  the  United  States,  the 
suffrage  was  extended  to  them. 

All  states  require  that  the  voters  should  have  a  residence  (3)  Resi- 

dcncc 
within  the  state  in  which  they  vote.    The  most  common  period 

is  one  year ;  but  Maine  requires  only  two  months  and  Idaho, 
Indiana,  Iowa,  IMichigan,  Nebraska,  and  Oregon,  six  months. 
At  the  other  extreme,  in  Alabama,  Louisiana,  IVIississippi, 
North  Carolina,  Rhode  Island,  South  Carolina,  and  Virginia,  \j 

two  years'  residence  is  necessary.  What  constitutes  residence 
is  determined  by  state  law,  and  once  acquired  it  may  be 
retained  under  certain  conditions  even  though  the  citizen  be 
absent.  While  the  provisions  of  the  absent-voting  laws  do  not 
alter  the  residence  requirements,  they  do  make  it  possible  for 
citizens  temporarily  absent  to  vote. 

Most  of  the  states  demand  that  the  voters  shall  be  bona-fide  (4)  citizen- 
citizens  of  the  United  States.  A  few  states,  however,  allow  ^  '^ 
aliens  to  vote  if  they  have  filed  their  intention  to  become  nat- 
uralized. Similar  provisions  which  formerly  existed  in  other 
states  were  adopted  to  encourage  immigration ;  but  with  the 
exception  of  the  states  mentioned  they  have  disappeared,  and 
the  right  to  determine  the  officers  and,  indirectly,  the  policy 

iSee  Absent  Voting,  pp.  gg-ioo. 


42 


STATE  AND  IMUNICIPAL  GOVERNMENT 


(5)  Prop- 
erty qualifi- 
cations 


(6)  Educa- 
tion 


of  the  state  and  of  the  United  States  has  been  properly 
confined  to  United  States  citizens. 

Practically  all  the  early  state  constitutions  imposed  a  prop- 
erty qualification — in  some  cases  on  the  voters  only,  in  other 
cases  on  the  voters  and  also  on  the  officers  chosen  b}'  the 
voters.  These  property  qualifications  have  now  almost  every- 
where disappeared.  Pennsylvania  requires  of  all  voters 
twenty-two  years  of  age  the  payment  of  a  state  and  county 
tax.  In  some  of  the  Southern  states  the  payment  of  a  tax  is 
one  of  the  alternate  qualifications  with  the  literacy  test.  The 
argument  in  favor  of  a  property  qualification  is  generally  based 
upon  the  theory  that  property  is  the  evidence  of  permanency 
or  interest  in  the  community,  or  a  measure  of  ability.  It  may 
be  all  of  these,  or  it  may  be  an  evidence  of  none.  Property 
unjustly  or  corruptly  acquired  is  hardly  an  evidence  of  fitness 
to  take  part  in  the  expression  of  the  common  will. 

Fourteen  states  demand  some  educational  attainment.  In 
thirteen  states^  one  must  be  able  to  read  and  write ;  five  states - 
require  simply  the  ability  to  read.  In  all  these  states,  how- 
ever, certain  classes  are  exempted  from  complying  with  this 
qualification.  Persons  physically  unable  to  read  or  write 
are  exempted  everywhere  except  in  Connecticut,  Mississippi, 
and  South  Carolina.  In  the  Northern  states  the  requirement  does 
not  apply  to  voters  of  a  certain  age  or  to  those  who  were  voters 
at  the  time  of  the  adoption  of  the  constitution.  In  many  of 
the  Southern  states  the  educational  prerequisite  is  made  an 
alternate  for  a  property  requirement,  and  in  some  Southern 
states  the  sons  and  grandsons  of  voters  at  a  certain  period 
are  exempt  from  this  education  qualification.^ 


1  Alabama,  Arizona,  California,  Delaware,  Georgia,  Louisiana,  Maine, 
Massachusetts,  New  Hampshire.  North  Carolina,  Oklahoma,  South 
Carolina,  Virp;inia. 

-Connecticut,  Maryland,  Mississippi,  Washington,  Wyoming. 

^State  Manual  of  Constitutional  Restrictions  (see  Index  Digest  of  State 
Constitutions,  prepared  for  the  New  York  Constitutional  Convention, 
igiS).  For  a  brief  statement  of  qualifications  see  tables  in  World  Alma- 
nac or  American  Year  Book.  For  fuller  treatment  of  the  educational 
qualification  sec  J.  li.  Phillips,  "Educational  Qualifications  of  Voters," 
in  University  of  Colorado  Studies,  Vol.  Ill,  p.  55. 


THE  ORGANIZATION  OF  THE  ELECTORATE     43 

The  exemption  at  a  certain  period  of  the  grandsons  of  voters  The 
from  the  present  requirements  is  popularly  known  as  the  " grand-  fl^^^e^^^" 
father  clause."  That  the  educational  qualification  need  not 
apply  to  certain  classes  has  always  been  admitted.  The  South- 
ern states,  however,  in  their  anxiety  to  insure  the  dominance 
of  the  white  voters,  framed  these  exemptions  so  that  illiterate 
whites  would  generally  be  exempt  while  illiterate  blacks  would 
be  disfranchised.^  This  was  an  attempt  to  circumvent  the 
Fifteenth  Amendment,  which  forbade  any  state  to  deprive 
the  citizens  of  the  United  States  of  the  right  to  vote  on  ac- 
count of  race,  color,  or  previous  condition  of  servitude.  In 
191 5  the  Supreme  Court  met  the  issue  squarely.  In  19 10 
Oklahoma,  which  was  admitted  as  a  state  in  1907,  adopted  a 
constitutional  amendment  requiring  an  educational  qualifica- 
tion; but  ''no  person  who  was,  on  January  i,  1866,  or  any 
time  prior  thereto,  entitled  to  vote  under  any  form  of  govern- 
ment, or  who  at  that  time  resided  in  some  foreign  nation,  and 
no  lineal  descendant  of  such  person,  shall  be  denied  the  right 
to  register  and  vote  because  of  his  inability  to  so  read  and 
write  sections  of  such  Constitution.  .  .  ."  This,  the  Supreme 
Court  held,  contravened  the  Fifteenth  Amendment,  saying  : 

It  is  true  it  contains  no  express  words  of  an  exclusion  from  the 
standard  it  establishes  of  any  person  on  account  of  race,  color,  or 
previous  condition  of  servitude,  prohibited  by  the  Fifteenth  Amend- 
ment, but  the  standard  itself  inherently  brings  that  result  into  ex- 
istence since  it  is  based  purely  upon  a  period  of  time  before  the 
enactment  of  the  Fifteenth  Amendment  and  makes  that  period  the 
controlling  and  dominant  test  of  the  right  of  suffrage.- 

The  purpose  of  the  grandfather  clause  was  confessedly  to  The  purpose 
disfranchise  the  negroes  Vv^hile  allowing  the  whites  to  vote.    It  gra^ndfather 
was  an  attempt  to  insure  that  the  electorate  should  contain  an  ^^^^^^ 
overwhelming  majority  of  white  voters.    Sometimes  the  asser- 
tion is  made  that  a  simple  literacy  test,  coupled  with  the 
requirements  of  continuous  residence  and  payment  of  a  poll 

^For  a  detailed  examination  of  these  restrictions,  with  a  discussion 
of  their  constitutional  bearings,  see  J.  C.  Rose,  "Negro  Suffrage,"  in 
American  Political  Science  Review,  Vol.  I,  pp.  17-44. 

'Gtiinn  v.  United  States,  238  U.S.  347,  364-365. 


44        STATE  AND  MUNICIPAL  GOVERNMENT 


Disqualifi- 
cations 


The  effect 
of  suffrage 
qualifica- 
tions 


tax,  would  probably  accomplish  the  same  result.  But  in 
Lowndes  County,  Alabama,  out  of  a  wliite  male  population  over 
twenty-one,  of  1139  only  81  were  illiterate.  The  same  county 
had  a  colored  male  population  of  over  6000,  of  whom  more 
than  4000  were  illiterate,  which  would  still  leave  a  colored 
majority  greater  than  the  combined  literate  and  illiterate  white 
voters.  How  far  the  qualifications  for  residence  and  payment 
of  poll  tax  would  alter  this  is  uncertain.  This  same  county,  rely- 
ing on  this  and  other  qualifications,  registered  only  39  colored 
voters  in  1902.^  It  may  be  granted  that  certain  classes  of  the 
negroes  are  not  fitted  to  exercise  the  suffrage.  But  it  is  sub- 
mitted that  qualifications  could  be  devised  which,  applied 
equally  to  both  races,  would  disfranchise  the  unfit  in  both 
races  and  yet  would  probably  leave  a  safe  majority  for  the 
white  race.- 

All  states  except  Iowa  disqualify  certain  classes.  The  obvi- 
ously unfit,  such  as  the  insane,  paupers,  and  persons  under 
guardianship,  are  generally  disqualified.  Seventeen  states  dis- 
qualify for  bribery ;  several  states  for  election  crimes.^  Some 
of  the  Southern  states  disqualify  for  crimes  to  which  the 
colored  race  is  peculiarly  prone,  thereby  still  further  insuring 
white  supremacy.  It  is  obvious  that  persons  in  these  classes  are 
hardly  fit  to  be  charged  with  the  expression  of  the  public  will 
of  the  state,  and  little  criticism  can  be  urged  even  against  those 
states  which  single  out  the  delinquencies  of  a  particular  race. 

The  intent  of  the  Fourteenth  Amendment  was  to  assure  man- 
hood suffrage.  Such  a  standard  prevails  in  New  York  State, 
where,  as  Professor  Holcombe  shows,  before  the  Nineteenth 
Amendment,  as  a  rule  76  per  cent  of  the  adult  male  citizens 
voted.  In  Massachusetts,  where  there  is  an  educational  quali- 
fication, 65  per  cent  voted ;  in  North  Carolina  and  South  Caro- 
line, 1 7  and  1 5  per  cent  respectively ;  in  Oregon,  59  per  cent ; 


'See  W.  E.  B.  Dubois,  "The  Social  Effects  of  Emancipation,"  in  the 
Survey,  February  i,  1913,  pp.  570-573.  For  these  and  other  tables  see 
A.  N.  Holcombe,  State  Government  in  the  United  States,  p.  147. 

-P'or  further  discussion  of  this  see  J.  C.  Rose,  "Negro  Suffrage,"  in 
American  Political  Science  Kevieiv,  Vol.  I,  pp.  17-44. 

^New  York  and  Wisconsin  disqualify  persons  who  bet  on  elections. 


THE  ORGANIZATION  OF  THE  ELECTORATE     45 

and   in  California   and   Washington,   deducting  the  probable 

percentage  of  women  voters,  about  39  per  cent.^ 

All   states  have   some  requirements   for    the   registering  of  Effect  of 

,r  1   .  ^    •       1  -i  registration 

voters,  and  as  registration  in  itself  may  debar  certain  classes,  it 
perhaps  should  be  included  among  the  qualifications  for  voting. 
In  New  York  State,  with  free  manhood  suffrage,  88  per  cent  of 
the  male  population  were  registered ;  in  iNIassachusetts,  which 
has  an  educational  qualification,  80  per  cent ;  in  Florida,  where 
there  is  a  tax-paying  qualification  for  the  purpose  of  disqualify- 
ing the  negroes,  42  per  cent ;  in  Louisiana  only  43  per  cent.  The 
question  arises  whether  a  literary  qualification  is  effective  in 
producing  a  proper  electorate.  In  Massachusetts  only  4  per  cent 
of  the  adult  male  qualification  were  disfranchised  because  of  such 
a  test,  while  13  per  cent  were  debarred  by  failure  to  register.-  It 
would  thus  seem  that  registration,particularly  if  required  annu- 
ally, as  in  New  York,  were  a  better  test  for  interest  and  readiness 
to  take  part  in  the  affairs  of  the  state  than  an  educational  test. 

Unless  the  election  is  for  a  state  officer,  chosen  by  the  entire  Election 
electorate  of  the  state,  the  voters  are  combined  in  districts. 
Much  more  attention  has  been  given  to  the  qualifications  for 
suffrage  and  the  extension  of  the  franchise  than  to  the  effect 
of  the  grouping  of  the  voters  in  constituencies.  If,  however, 
these  voters  are  combined  into  unfair  or  artificial  constituen- 
cies the  popular  will  may  be  defeated.  The  most  obvious 
example  of  this  is  in  the  composition  of  certain  districts  for 
the  election  of  congressmen.  Some  states,  by  skillful  ''gerry- 
mandering," have  been  able  to  insure  a  majority  for  a  party 
which  did  not  express  the  will  or  desire  of  the  people  who 
would  naturally  be  associated  together.^  Ideally,  an  election 
district  should  be  compact,  equal  in  size  to  other  election  dis- 
tricts, and  should  have  some  self-consciousness.  As  a  matter 
of  fact,  election  districts  vary  from  an  entire  state  to  a  ward 
of  a  city.    In  general,  every  voter  acts  with  the  citizens  of 

lA.  N.  Holcombe,  State  Government  in  the  United  States,  pp.  i44-i4S- 

2  Ibid.  p.  14Q. 

3 See  P.  S.  Reinsch,  American  Legislatures  and  Legislative  Methods, 
p.  201;  also  J.  R.  Commons,  Proportional  Representation,  chap,  iii,  for 
maps  and  tables. 


46        STATE  AND  MUNICIPAL  GOVERNMENT 

the  entire  state  in  the  election  of  governor  and  state  officers. 
He  also  belongs  in  the  congressional  district,  the  state  sena- 
torial district,  the  county,  the  state  representative  district. 
Thus,  he  is  associated  with  different  groups  of  voters — varying 
from  the  small  number  in  his  ward  to  the  entire  voting  popu- 
lation of  his  state — in  order  to  choose  representatives,  judges, 
and  executive  officers  and  for  purposes  as  diverse  as  school 
administration,  the  decision  of  constitutional  questions  by  the 
courts,  the  management  of  the  county  jail,  and  the  national 
affairs  of  the  federal  government.^  It  is  impossible  that  elec- 
toral districts  made  simply  upon  a  geographical  basis  or  upon 
the  basis  of  population  could  adequately  perform  these  tasks. 
Here  it  is  that  the  party  system  intervenes  and  furnishes  a 
guide  and  directions  for  the  varied  actions  which  the  voters  are 
called  upon  to  perform  in  their  different  capacities. 
Definition  A  political  party  may  be  defined  as  a  durable  organization  of 
party  voters,  holding  similar  principles  and  agreeing  upon  a  common 

policy,  which  attempts  to  control  the  state  by  means  of  the 
election  of  their  candidates.  A  political  party  exists  primarily 
for  the  purpose  of  carrying  elections.  It  thus  differs  from  groups 
organized  to  propagate  definite  ideas.  A  political  party  is  sup- 
posed to  have  certain  common  principles  as  to  what  the  state 
should  be  and  do,  but  too  often  these  principles  are  vaguely  and 
generally  expressed.  A  political  party  more  often  has  a  definite 
policy,  which  it  sets  out  to  accomplish.  To  achieve  this  it  may 
attract  persons  who  are  not  in  full  agreement  with  the  principles 
of  the  party.  A  political  party  is  a  durable  organization ;  that 
is,  it  may  vary  in  personnel  and  in  character,  but  so  long  as  the 
party  exists  the  organization  continues.  Finally,  a  political 
party  attempts  to  control  the  state  and  to  administer  the  gov- 
ernment, not  in  accord  with  the  desires  and  wishes  of  all  the 
citizens  of  the  state  but  with  the  desires  and  wishes  of  the  party. 
Government  of  this  type  is  party  government. 
Legal  defl-         Formerly  political  parties  were  unrecognized  by  law.    They 

nition  of  ,       ^  ... 

parties         were  voluntary  organizations  of  voters  subject   to  no  special 

lA.  N.  Holcombc,  State  Government  in  the  United  States,  pp.  150- 
160,  flescribcs  the  nnincrous  electoral  districts  lo  whidi  the  president  of 
Harvard   University   belongs. 


THE  ORGAxMZATION  OF  THE  ELECTORATE     47 

regulations  of  the  state.  This  does  not  mean  that  they  were 
not  subject  to  the  laws  which  applied  to  all  citizens,  but  that 
the  state  took  no  cognizance  of  them  as  organizations.  When, 
however,  the  state  began  to  extend  its  control  over  elections 
to  the  extent  of  printing  the  ballots  and  determining  the  method 
by  which  the  names  of  candidates  were  placed  upon  the  ballot, 
it  became  necessary  to  make  some  legal  definition  for  parties. 
Various  states  have  done  this  in  different  ways.  Most  states 
define  a  party  as  a  group  which  has  cast  a  certain  percentage 
of  the  vote  at  a  previous  election.  Such  a  group  being  a  legal 
party,  it  is  relieved  from  some  formalities  and  may  place  the 
names  of  its  candidates  upon  the  primary  ballot  without  filing 
special  petitions. 

The  functions  of  a  party  are  threefold :  first,  it  must  select  Functions 
its  candidates  for  office  (that  is,  make  nominations)  ;  second,  "  ^^^^^ 
it  must  make  a  declaration  of  principles  (that  is,  state  its 
platform)  ;  third,  it  must  attempt  to  elect  its  candidates  (that 
is,  conduct  the  campaign).  To  accomplish  these  ends  a  politi- 
cal party  must  have  a  durable  organization,  continuing  from 
campaign  to  campaign.  Formerly  neither  the  organization  of 
the  party  nor  the  method  of  nomination  was  regulated  by  the 
state.  Elections  have  always  been  conducted  by  the  state,  but 
few  restrictions  were  formerly  placed  upon  the  method  by 
which  the  campaign  was  carried  on. 

States  differ  in  their  types  of  party  organization.    In  fact,  The  organi- 

-  ....  .  •      ^1        1   i    •!        r  zationofthe 

m  the  same  state,  different  parties  may  vary  in  the  details  ot  party 
organization.    Generally,    however,    in   all    parties   and   in   all 
states  the  organization  has  three  common  factors.    Two  of 
these,  the  party  committees  and  the  party  officers,  are  con- 
tinuous; the  third,  the  party  convention,  is  temporary. 

In  every  state  each  political  party  has  a  state  central  com-  Party 
mittee.  This  committee  is  variously  chosen.  Formerly  in  all 
states,  and  still  in  some,  the  state  committee  is  chosen  by  the 
party  convention.  With  the  introduction  of  the  direct  pri- 
mary, later  to  be  discussed,  party  committees  are  chosen  by 
the  voters  directly.  Some  states  have  combined  these  two 
methods  and  allow  the  convention  to  designate  certain  mem- 
bers while  the  electorate  chooses  others.    In  other  states  the 


48        STATE  AND  INIUNICIPAL  GOVERNMENT 

committee  may  be  chosen  by  the  voters,  but  is  allowed,  itself, 
to  coopt  additional  members.  Elsewhere  the  committee  may 
be  designated  by  the  candidates  nominated  at  the  convention  or 
the  primaries.  The  general  tendency  of  recent  legislation, 
however,  is  to  vest  the  choice  of  the  party  committee  directly 
in  the  electorate  voting  at  the  primaries.  By  so  doing  it  was 
hoped  that  the  organization  of  the  party  would  be  more  sub- 
ject to  the  wishes  of  the  members  and  be  less  likely  to  fall 
under  the  domination  or  control  of  leaders  who  are  less  re- 
sponsive to  popular  sentiment.  It  is  difficult  to  determine  how 
far  these  aspirations  have  been  realized.  Largely  because  of  the 
indifference  of  the  party  members  themselves,  the  leaders  ap- 
parently have  little  difficulty  in  naming  the  committee.  There 
is  one  obvious  objection  to  this  method.  A  committee  chosen 
at  the  primar}^  may  be  out  of  sympathy  with  the  candidates 
nominated  at  the  same  primary.  There  is  less  likelihood  of 
this  happening  when  the  committee  and  the  candidates  are 
chosen  at  the  same  convention,  and  it  becomes  practically 
impossible  when  the  candidates  are  allowed  to  choose  their 
own  committees. 

Composition      State  committees  are  composed  of  delegates  selected  from 

cSmmitteT  o^  by  local  districts.  There  is  no  uniformity  of  practice.  Thus, 
in  New  York  and  IMissouri  the  congressional  district  is  taken 
as  a  unit;  in  Pennsjdvania,  the  state  senatorial  district;  while 
in  some  states  the  county  is  the  accepted  unit.  In  all,  how- 
ever, the  state  committee  represents  all  sections  of  the  state, 
and  in  many  states  it  is  so  large  and  cumbersome  that  its 
functions  are  generally  performed  by  a  smaller  body  known 
as  the  executive  committee. 

The  func-         The  activities  of  the  state  committee  are  sharply  divided. 

thTstate      During  periods  between  elections  the  state  committee  seldom 

comraittee:    j^gg^s  as  a  body,  although  its  individual  members  are  bv  no 

(i)  Between  ^  >  o 

campaigns  means  idle.  Each  one,  in  his  own  district,  is  supposed  to 
direct  the  spreading  of  propaganda  to  settle  disputes  and  to 
overcome  local  jealousies.  He  is  expected  to  know  what  the 
party  members  are  thinking  and  to  lead  and  direct  the  for- 
mation of  public  sentiment  favorable  to  the  party.  An  ideal 
state  committeeman  is  a  true  leader  within  his  district.    He 


THE  ORGANIZATION  OF  THE  ELECTORATE    49 

does  not  have  to  depend  solely  upon  his  native  ability;  he 
is  often  the  channel  through  which  the  state  administration 
distributes  favors  or  offices,  and  thus  he  can  reward  the 
faithful,  strengthen  the  faith  of  the  wavering,  and  even  win 
over  the  hostile  voter.  During  this  quiescent  period  the  com- 
mitteeman frequently  attaches  to  himself  voters  who  may  be 
of  use  in  the  coming  campaign. 

For  the  committeeman  the  election  campaign  begins  even  {2)  Prepara- 
before  the  nomination  of  the  candidates.  The  state  commit-  nomination 
tee,  either  as  a  whole  or  through  the  medium  of  its  chairman 
or  its  executive  committee,  very  frequently  is  favorable  to  the 
choice  of  certain  candidates.  In  those  states  where  the  can- 
didates are  nominated  by  the  convention,  the  committee  as  a 
whole,  or  the  individual  committeemen,  have  been  known  to 
pick  men  in  agreement  with  them  as  delegates  to  the  conven- 
tion. In  some  states  the  committee  is  so  powerful  that  it 
practically  names  the  candidates  or  chooses  delegates  com- 
pletely under  its  control.  Such  delegates  are  sometimes  called 
''hand-picked." 

In  the  process  of  nomination  the  committee  is  responsible  Activities 

.  .  .  1    r       ^1       f-T        of  the  state 

for  the  call  for  the  primaries  or  conventions  and  for  the  hling  committee: 

with  the  state  officers  of  the  proper  petitions  for  primary  bal-  (i)  m  the 

process  of 

lots.    Under  the  old   convention   system   the   committee  was  nomination 
all-powerful    in   summoning   the  convention   and   determining 
the  temporary  roll,  and,   as  has  been   pointed   out,   through 
the  activities   of   its   members   it    frequently   dominated   the 
convention. 

During  the  campaign  the  committee  works  with  feverish  (2)  During 
activity.  It  collects  the  funds  necessary  for  the  campaign  and,  campaign 
in  so  doing,  must  scrupulously  examine  the  source  of  such 
contributions  in  order  that  it  may  keep  within  the  law.  The 
committee  serves  as  a  general  strategy  board,  plans  political 
meetings,  dispatches  speakers,  formulates  the  policies  for  the 
conduct  of  the  campaign,  and  arouses  enthusiasm. 

The  most  important  officer  of  the  state  committee  is  its  The  chair- 

'^  J  •  J  r       ^^^  ^^^  the 

chairman.    In  some  states  he  is  chosen  by  the  candidate  tor  treasurer  of 
governor ;  in  others,  by  the  committee  itself.    Presumably  he  is  Jommfttee 
always  an  expert,  practical  politician,  and  on  him  devolves 


50        STATE  AND  MUNICIPAL  GOVERNMENT 


Local 
committees 


County 
committees 


the  duty  of  keeping  harmony  among  and  injecting  energy 
into  the  other  members  of  the  committee.  Frequently  he  is 
not  onh'  the  most  influential  man  on  the  committee  but  more 
influential  than  all  the  rest  put  together.  He  is  not  merely 
its  executive  agent;  he  is  generally  the  directing  force,  with 
the  committee  members  as  his  aids.  The  treasurer  of  the 
committee,  in  modern  times,  is  generally  a  man  of  sterling 
probity  and  unexceptionable  reputation.  He  has  charge  of 
the  campaign  fund.  This  is  gathered  generally  by  collectors 
throughout  the  state,  but  the  treasurer  is  held  legally  respon- 
sible for  the  acceptance  of  contributions  and  the  distribution 
of  the  money.^ 

Theoretically  there  is  a  political  committee  for  every  dis- 
trict electing  an  officer.  Thus,  there  are  ward,  city,  and  town 
committees,  county  committees,  state  representative  commit- 
tees, state  senatorial  committees,  and  congressional  commit- 
tees. The  most  important  of  these,  however,  are  the  county 
committees  outside  of  New  England  and  the  city  or  town  com- 
mittees in  New  England.  The  county  committees  rank  next 
to  the  state  committees  in  importance ;  in  New  England,  where 
the  town  or  city  rather  than  the  county  is  the  political  unit, 
county  committees  are  of  little  importance  and  their  activities 
are  undertaken  by  the  city  or  town  organizations. 

County  or  city  committees  have  two  functions.  Primarily 
they  may  be  interested  in  the  nomination  and  election  of  the 
local  officials — county  commissioners,  mayors,  and  so  forth. 
'I'hese  functions  will  be  discussed  later.  Yet  from  the  point 
of  view  of  the  state  organization  they  are  strictly  subordinate 
to  the  state  committee.  They  and  their  oftlcers,  receiving 
directions  and  contributions  from  the  state  party  committee, 
conduct  the  campaign  for  the  state  officials  under  the  direction 
of  the  higher  committee.  Since,  however,  in  local  affairs  the 
local  officers  and  organizations  are  apt  to  be  influential  with 
the  voters,  and  since  in  some  states  the  ''county  ring"  domi- 
nates the  political  life,  these  local  committees  cannot  be  ignored. 
(Generally  there  is  little  possibility  for  friction,  because  the 
leader  in  the  county  may  be  on  the  state  committee  or  a  close 

'  See  panes  83-87. 


THE  ORGANIZATION  OF  THE  ELECTORATE     51 

friend  and  supporter  of  the  state  committeeman,  or  even,  in 
some  cases,  the  mentor  of  the  state  committeeman. 

The  temporary  element  in  the  organization  of  a  political  Party 
party  is  the  party  convention.  This  is  summoned  at  stated 
intervals  in  the  political  cycle — annually  where  the  officers 
are  subject  to  yearly  elections,  biennially  or  even  quadrenni- 
ally where  the  officers  are  elected  less  frequently.  Before  the 
institution  of  the  direct  primary  the  party  convention  was  the 
supreme  governing  authority  in  the  party.  Until  the  state 
attempted  to  subject  political  parties  to  legal  control,  the 
convention  alone  made  the  rules  and  regulations  for  the  choice 
of  party  officers  besides  nominating  candidates  and  framing 
the  platform.  Just  as  there  may  be  party  committees  for 
each  constituency,  so,  in  former  times  and  still  in  some  states, 
conventions  may  be  held  for  each  district  nominating  or 
choosing  officers. 

The  most  important  convention,  however,  is  the  state  con-  The  state 
vention.    This   is  composed   of   delegates   chosen   in  different 
ways  from  the  various  districts.    In  some  states  the  county  is  (i)Compo- 

.  sition 

the  unit.  In  New  England  the  town  or  city  or  even  the  ward 
may  be  the  unit.  The  delegates  from  districts  of  greater  area 
are  more  frequently  selected  by  special  conventions  held  for 
this  purpose. 

In  the  organization  of  the  state  conventions  the  state  com-  (2)  organi- 
mittee  was  formerly  all-powerful.    It  issued  the  call  for  the  ^ 
convention,  but,  in  so  doing,  it  did  more  than  to  fix  the  date.  It  (3)  The  can 
determined  the  method  by  which  the  delegates  should  be  chosen 
— whether  by  primaries  or  subordinate  conventions.    It  appor- 
tioned the  delegates  to  districts;    this  might  be  according  to 
population  or  according  to  party  strength,  as  decided  by  the 
rules  of  the  party  adopted  at  the  previous  convention. 

Where  the  convention  system   is  unaffected  by   the  direct  (4)Thetem- 

porary  roll 

primary  there  is  a  routine  procedure.  When  the  delegates  to 
the  convention  are  assembled  the  commiittee  organizes  the  con- 
vention. Each  delegate  presents  his  credentials;  that  is,  a 
certificate  of  the  fact  that  he  was  duly  elected  at  the  primary 
or  subordinate  convention  to  represent  the  party  members  of 
his  district.    Frequently   there  are  "contests";    that  is,   two 


52         STATE  AND  MUNICIPAL  GOVERNMENT 


(5)  The 

temporary 

chairman 


(6)  Com- 
mittee on 
credentials 


(7)  Per- 
manent or- 
ganization 


(8;  The 
work  of  the 
convention 

^9)  Com- 
mittee on 
resolutions 

(lo)  Plat- 
form 


delegates  might  appear  from  the  same  district,  holding  cre- 
dentials from  rival  caucuses  or  subordinate  conventions.  It  is 
the  duty  of  the  committee  to  settle  these  contests  after  hearing 
the  claims  on  both  sides  and  to  seat  the  delegates  who  in  its 
judgment  have  the  best  claim.  The  result  of  these  decisions  is 
embodied  in  the  "temporary  roll"  of  the  convention — a  list 
of  the  delegates  who  are  allowed  to  take  part  in  the  organiza- 
tion of  the  convention.  Rather  often  committees  have  decided 
contests  not  upon  the  basis  of  justice  but  in  order  to  obtain 
delegates  subservient  to  their  control. 

The  chairman  of  the  state  committee  calls  the  delegates  to 
order.  The  proceedings  open  with  prayer  and  generally  a 
speech  by  the  chairman  of  the  committee,  and  then  follows  the 
choice  of  a  temporary  chairman,  who,  in  his  turn,  makes  a 
speech  (frequently  known  as  the  keynote  speech),  which  is 
designed  to  rouse  enthusiasm  and  possibly  to  direct  the  con- 
vention along  the  lines  desired  by  the  state  committee. 

The  temporary  chairman  next  appoints  a  committee  on 
credentials,  who,  after  reviewing  the  work  of  the  state  com- 
mittee in  seating  contesting  delegates,  reports  to  the  conven- 
tion. Since  the  convention  is  composed  only  of  those  delegates 
seated  by  the  state  committee,  and  the  committee  on  creden- 
tials is  drawn  from  those  delegates,  the  report  of  the  commit- 
tee on  credentials  generally  supports  the  action  of  the  state 
committee  and  is  usually  ratified  by  the  convention  without 
question.  In  other  words,  the  temporary  organization  votes 
itself  the  permanent  organization  of  the  convention.  The 
convention  now  being  permanently  organized,  selects  a  per- 
manent chairman,  who  accepts  with  a  speech.  Frequently, 
however,  the  convention  chooses  the  temporary  chairman 
as  the  permanent  chairman,  and  the  delegates  are  spared 
further  discussion. 

A  committee  upon  resolutions  is  formed  whose  duty  it  is 
to  prepare  a  series  of  statements  embodying  the  principles  of 
the  party  and  setting  forth  a  declaration  of  its  policy.  These 
resolves  constitute  the  platform.  The  chairman  of  the  com- 
mittee on  resolutions  has  generally  been  designated  by  the 
state  committee  long  before  the  convention  was  summoned, 


THE  ORGANIZATION  OF  THE  ELECTORATE     S3 

and  his  work  has  been  carefully  supervised  by  the  leaders  of 
the  party.  Hence  the  actual  work  of  the  committee  on  resolu- 
tions in  framing  the  platform  is  largely  illusive.  Occasionally, 
however,  amendments  are  offered  from  the  floor,  although 
these  are  rarely  adopted  by  the  convention. 

Before  the  day  of  the  direct  primary,  and  in  those  states  (n)  Nomi- 
where  it  has  not  been  adopted,  the  next  and,  in  many  ways, 
the  most  important  duty  of  the  convention  was  to  make  nom- 
inations. These  were  made  by  delegates,  who,  as  has  been 
shown,  were  often  "hand-picked"  by  the  state  committee  and 
therefore  susceptible  to  its  direction.  Although  sometimes 
waves  of  enthusiasm  would  sweep  the  convention,  or  the  appeal 
of  a  popular  leader  outweigh  the  desires  of  the  state  commit- 
tee, in  general  the  delegates  would,  to  use  the  popular  phrase, 
"stand  without  hitching."  As  a  rule  the  influence  of  the  state 
committee  was  all-powerful  and  few  candidates  whom  they 
actively  opposed  were  nominated. 

The  convention  in  former  times  had  one  other  duty — to  (12)  choice 
choose  the  state   committee   and   its   officers.     As   has   been  committee 
pointed  out,  this  was  not  always  done  by  the  convention,  and  ^°^  officers 
in  those  states  which  have  adopted  the  direct  primary  system 
they  are  now  selected  by  the  people  directly. 

Theoretically  the  convention  system  is  the  ideal  way  of  Discussion 
conducting  party  affairs.  It  is  an  example  of  representative  vention°°' 
organization ;  it  provides  opportunity  for  the  delegates  from  system 
all  parts  of  the  state  to  meet  in  conference  and,  after  hearing 
arguments,  to  make  their  decisions  upon  the  policy  of  the 
party  and  to  determine  its  candidates ;  it  gives  a  proper  legiti- 
mate scope  for  genuine  leadership.  State  committeemen  theo- 
retically are  local  leaders.  The  convention  system  enables 
these  leaders  to  exert  their  influence  in  representing  the  popu- 
lar opinion  of  their  localities  and  to  transmit  into  their  locali- 
ties the  opinions  of  others.  It  gives  the  leaders  an  opportunity 
to  appeal  to  delegates  from  all  over  the  state  and  for  the 
delegates,  before  casting  their  votes,  to  hear  the  opinions  of 
delegates  from  other  communities  and  to  listen  to  other 
leaders.  If,  as  the  theory  requires,  the  delegates  were  the  most 
representative  party  men  of  their  districts,  who,  after  hearing 


54        STATE  AND  MUXICIPAL  GOVERX:\IEXT 

arguments,  reached  a  calm  decision  based  upon  evidence  and  a 
genuine  desire  to  further  the  good  of  the  party,  no  better 
system  could  be  devised  for  the  conduct  of  party  affairs.  An 
examination  of  the  actual  working  of  the  convention  system 
will  show  how  far  the  practice  departed  from  this  theory. 
Faults  of  Seldom  are  the  majority  of  the  delegates  the  best  or  even 

the  conven-     ,  ■  i  i-     i  t     •  i 

tion  system:  the  most  representative  members  of  the  party.    It  is  true  that 
(i)  Char-      probably  no  party  convention  was  ever  held  that  did  not  con- 

acter  of  the         .  .     ,  .  ,  .     , 

delegates  tain  some  of  the  wisest  and  some  of  the  most  representative 
men,  but  the  conventions  generally  attract  at  best  mediocre 
men.  If  the  state  committeeman  is  successful  in  naming  the 
delegates,  he  will  see  to  it  that,  while  there  are  several  names 
of  outstanding  merit,  the  mass  will  be  amenable  to  his  direc- 
tions. This  does  not  necessarily  mean  that  the  delegates  are 
of  the  type  mentioned  below, ^  but  they  are  not  men  of  force 
and  great  independence  of  judgment. 

^2)  Irregular  Occasionally  the  proceedings  of  the  convention  have  been 
characterized  by  irregularity  if  not  downright  fraud.  The 
power  of  the  state  committee  in  passing  upon  the  credentials 
of  the  members  has  already  been  noticed.  This  power  has 
been  too  often  abused  in  order  to  unseat  delegates  of  whom 
the  convention  was  not  sure  and  to  seat  those  delegates  who 
would  be  compliant.  In  some  instances  a  faction  has  gained 
possession  of  the  convention  hall,  locked  thie  doors,  and  pre- 
vented  the.  other  delegates   from  sharing   in   the  proceedings 

■■  Of  the  delepatcs,  those  who  had  been  on  trial  for  murder  numbered 
17;  sentenced  to  the  penitentiary  for  murder  or  manslaughter  and 
served  sentence,  7 ;  served  terms  in  the  penitentiary  for  burglary,  36 ; 
served  terms  in  the  penitentiary  for  picking  pockets,  2 ;  served  terms 
in  the  penitentiary  for  arson,  i ;  ex-Bridewell  and  jailbirds,  identified  by 
detectives,  84 ;  keepers  of  gambling-houses,  7 ;  keepers  of  houses  of  ill 
fame,  2 ;  convicted  of  mayhem,  3 ;  ex-prize-fighters,  1 1 ;  pool-room  pro- 
prietors, 2;  saloon-keepers,  265;  lawyers,  14;  physicians,  3;  grain  deal- 
ers, 2;  political  employees,  148;  hatter,  1;  stationer,  i;  contractors,  4; 
grocer,  i;  sign-painter,  i;  plumbers,  4;  butcher,  i;  druggist,  i;  furni- 
ture supplies,  i;  commission  merchants,  2;  ex-policemen,  15;  dentist,  1; 
speculators,  2 ;  justices  of  the  peace,  3 ;  ex-constable,  1 ;  farmers,  6 ; 
undertakers,  3;  no  occupation,  71;  total  delegates,  723. —  Reviexv  of  Re- 
views, Vol.  XVI,  p.  322,  quoted  by  1'  O  Ray,  An  Introduction  to 
Political  Partiis  and  Pracliial  Politics  (rev.  cd.),  ]).  128 


THE  ORGANIZATION  OF  THE  ELECTORATE     55 

of  the  convention.  Sometimes  the  chairman  "gavels"  through 
a  measure;  that  is,  he  announces  that  the  "ayes"  have  carried 
the  motion,  when,  as  a  matter  of  fact,  the  motion  is  lost.  At 
best  the  conventions  are  not  orderly.  Even  where  a  semblance 
of  order  is  maintained,  the  cheering  and  enthusiasm,  which  is 
by  no  means  always  spontaneous,  makes  calm  consideration 
almost  impossible. 

The  convention  system,  as  do  all  representative  systems,  (3)  Remote- 
involves  a  delegation  of  power.  The  voter  at  the  caucus  or  t^e  voter 
primary  chooses  delegates  who  may  or  may  not  perfectly 
satisfy  his  will.  When  the  delegates  to  a  convention  are 
selected  by  a  subordinate  convention  another  step  intervenes 
between  the  voter  and  the  final  expression  of  the  party  will. 
At  the  time  of  the  caucus  at  which  the  delegates  are  chosen 
the  issues  and  candidates  are  by  no  means  clear  to  the  aver- 
age voter.  He  has  to  express  his  opinion  upon  delegates  of 
whom  he  may  know  little,  over  whom  he  has  little  influence, 
and  who  are  put  before  him  by  the  leaders.  Theoretically  a 
group  of  voters  may  select  any  delegates  they  wish  for  the 
convention ;  practically,  however,  because  of  their  indifference, 
the  organization  presents  to  them  the  delegates  of  whom  it 
feels  sure. 

The   criticisms   just   mentioned    make   it    evident    that    the  (4)  Organi- 

.,  ,  ,11^1  •     zation  or 

convention  system  is  very  susceptible  to  control  by  the  organi-  machine 
zation.  The  organization  may  utilize  its  great  powers  to  '^°°t''°i 
secure  the  nomination  of  upright  candidates ;  ^  it  may  force 
a  compromise  between  divergent  factions.  In  too  many  in- 
stances, however,  the  organization  manipulates  the  convention 
so  that  it  fails  to  express  the  real  desires  of  the  party  mem- 
bers and  merely  registers  the  decisions  of  the  leaders,  who  can 
safely  trust  the  voters,  after  their  resentment  has  died  down,  to 
ratify  their  choice  because  of  loyalty.  In  not  a  few  instances 
the  organization  has  manipulated  the  convention  for  personal 
and  corrupt  ends.  In  so  doing  it  sinks  to  the  level  of  a  machine, 
and  the  leaders  become  "bosses." 

^A  former  chairman  of  a  state  executive  committee,  in  praising  the 
convention  system  as  operated  by  his  party,  asserted  that  the  conven- 
tion system  had  never  nominated  a  "crook." 


56 


STATE  AND  MUNICIPAL  GOVERNMENT 


The 
machine 


Organiza- 
tion of  the 
machine. 
Tammany 
Hall: 


(i)  The 
county 
committee 


(2)  The 

executive 

committee 


A  machine  differs  from  an  organization  in  that  it  operates 
and  directs  the  party,  not  for  the  interests  of  the  party,  but 
for  private  or  personal  ends.  In  a  machine  the  leader  is  the 
boss.  The  boss  need  not  be  personally  corrupt  nor  need  the 
machine  or  the  boss  engage  in  corrupt  or  illegal  practices.  As 
has  been  shown,  there  is  ample  scope  within  the  letter  of  the 
law  for  the  machine  to  misrepresent  the  rank  and  file  of  the 
party  and  to  manipulate  the  organization  so  that  candidates 
are  nominated  and  elected  who  may  be  subject  to  influences 
other  than  those  of  the  party. 

The  organization  of  the  machine  may  perhaps  best  be 
studied  from  a  description  of  the  most  efficient  political  organi- 
zation in  the  United  States — Tammany  Hall.^  Tammany 
Hall,  which  is  the  name  of  the  headquarters  of  the  local 
organization  of  the  Democratic  party  for  New  York  County, 
originated  in  1789  as  a  benevolent  social  society.  It  soon  be- 
gan to  take  part  in  local  politics  and  sided  with  the  Anti- 
Federalists.  Although  it  still  bears  the  title  "Democratic 
Republican,"  it  has  followed  the  fortunes  of  the  Democratic 
party — the  lineal  descendant  of   the  Anti-Federalists. 

The  county  committee  for  New  York  County  is  composed  of 
one  delegate  for  every  thirteen  Democratic  voters.  Theoreti- 
cally this  should  give  the  most  perfectly  democratic  organiza- 
tion in  the  world;  practically  it  produces  a  huge  committee 
of  more  than  eight  thousand,  so  unwieldy  that  committee 
action  is  impossible.  Its  very  size  appeals  to  the  leaders  of 
the  machine.  Eight  thousand  members  of  the  party  are 
honored  by  being  chosen  committeemen  and  therefore  become 
active  workers.  Each  committeeman,  moreover,  is  assessed 
ten  dollars,  which  gives  the  party  treasury  an  initial  sum  of 
more  than  eighty  thousand  dollars. 

The  real  work  of  the  committee  is  performed  by  the  execu- 
tive committee.    This  is  a  small  body  consisting  of  one,  two, 

^The  most  recent  account  of  the  orRanization  of  Tammany  Hall  is 
Riven  by  Gustavus  Myers,  History  of  Tammany  Hall  (2d  ed.),  New 
York,  1917.  Sec  also  P.  O.  Ray,  An  Introduction  to  Political  Parties 
and  Practical  Politics  (rev.  ed.),  pp.  435-447,  for  an  account  furnished 
by  L.  P.  Kilroe,  chairman  of  the  general  committee  of  the  nineteenth 
assembly  district. 


THE  ORGANIZATION  OF  THE  ELECTORATE     57 

or  three  leaders  from  each  of  the  twenty-three  assembly  dis- 
tricts into  which  New  York  County  is  divided.  In  theory 
the  members  of  the  executive  committee  are  chosen  by  the 
committee  members  from  their  assembly  district.  However, 
in  practice  a  would-be  executive  committeeman  prepares  a 
"slate";  that  is,  a  list  of  names  in  the  proportion  of  one  to 
every  thirteen  Democratic  voters  in  his  district  with  his  own 
name  at  the  head.^  At  the  primary  election,  if  this  slate  is 
successful,  not  only  are  the  names  on  the  ticket  elected  to 
county  committees  but  the  originator  of  the  slate  becomes  the 
"leader"  of  the  district  and  a  member  of  the  executive  com- 
mittee. There  is  a  rule  of  the  county  organization,  however, 
that  the  newly  elected  members  of  the  executive  committee 
must  be  accepted  by  the  retiring  committee.  This  tends  to 
perpetuate  the  influence  of  the  executive  committee  and  to 
make  revolt  against  its  decisions  unlikely. 

The  members  of  the  executive  committee  and  the  men  inti-  (3)  influence 
mately  associated  with  it  practically  control  the  government  executive 
of  New  York  City  and  are  influential  in  state  and  even  in  committee 
national  politics.    Primarily  they  are  engaged  in  the  election 
of  candidates  and,  as  such,  disburse   the  party   funds.    But 
since  they  control  the  candidates  who  are  generally  elected, 
they  frequently  determine  the  policy  and  action  of  the  city  and 
county  officials.    The  leaders  and  officials  of  Tammany  Hall 
are  either  members  of  the  executive  committee  or  have  great 
influence  over  its  decisions.    Although  the  executive  committee 
has  certain  officers,  as  do  all  party  committees,  the  real  power 
has  been  frequently  exercised  by  some  unofficial  person  who  is 
able  to  control  and  dictate  its  action.    He  is  the  boss.- 

ipor  illustration  of  a  ticket  see  C.  A.  Beard,  "The  Ballot's  Burden," 
in  Political  Science  Quarterly,  Vol.  XXIV,  p.  589. 

2  The  influence  of  Tammany  Hall  in  New  York  City  politics  has 
somewhat  declined.  The  extraordinary  growth  of  population  in  the 
outlying  boroughs  has  tended  to  reduce  the  influence  of  Manhattan. 
With  the  changed  character  of  immigration  the  Irish  no  longer  have 
their  dominating  influence,  and  the  Socialist  party  more  strongly  appeals 
to  the  East  Side  population.  The  abolition  of  the  saloon  may  also  be 
expected  to  decrease  Tammany's  influence  still  further.  See  C.  A.  Beard, 
American  Government  and  Politics  (3d  ed.),  p.  663. 


58        STATE  AND  MUNICIPAL  GOVERNMENT 

(4)  District       The  members  of  the  executive  committee  occupy  a  dual 
leaders         position.    Their  duties  on  that  committee  have  already  been 

described,  but  they  have  other  duties  even  more  important. 
These  are  connected  with  their  own  districts.  Each  district 
leader  must  be  the  most  influential  member  of  his  party  within 
his  district.  To  be  such  he  must  be  continually  active.  He 
must  attach  to  himself  personally  the  voters  of  his  district. 
For  this  he  must  confer  countless  favors  and  be  ever  ready 
to  help  his  constituents.  He  is  the  most  charitable  of  per- 
sons— generous  with  his  own  means  and  prodigal  with  the 
resources  he  may  control.  Not  only  is  he  given  to  charity, 
but  he  is  the  center  of  the  social  life  of  his  district  and  gen- 
erally the  patron  of  the  political  club  where  the  members  of 
the  party  seek  relaxation.  He  not  only  knows  the  mind  of 
his  district  but  must  be  able  to  anticipate  it,  to  guide  it,  and, 
in  rare  emergencies,  to  control  it.  Too  often  his  means  come 
from  sources  not  altogether  legitimate.^ 

(5)  Election       The  assembly  districts  are  divided  into  election  districts,  or 
cap  ains       pj-gcincts.    In  each  of  these  there  is  a  minor  leader  known 

as  the  election  captain.  His  duties  and  functions  are  analo- 
gous to  those  of  the  district  leader,  but  he  operates  within  a 
smaller  sphere,  since  his  resources  are  not  so  great  and  he  is 
forced  to  subordinate  himself  to  the  will  of  the  district  leader. 

(6)  The  "The  workers"  is  the  name  given  to  the  active  members  of 
the  party.  They  are  controlled  by  the  election  captains  or 
district  leaders.  They  often  receive  actual  cash  payment  for 
their  services  in  "getting  out  the  vote"  or  in  aiding  regis- 
tration. Every  party  must  depend  upon  party  workers,  paid 
or  unpaid.  In  a  machine,  however,  almost  the  only  bond  be- 
tween the  worker  and  the  party  is  the  money  paid.  The 
workers  frequent  the  political  clubs  of  the  district,  where  they 
gather  inspiration  and  receive  their  orders ;  they  permeate  the 
life  of  the  district,  spreading  the  opinions  of  the  leaders  and 
captains  and  bringing  to  their  superiors'  attention  likely  recruits 
or  possible  symptoms  of  discontent. 

J  For  a  description  of  an  imaginary  day  of  the  typical  assembly  dis- 
trict leader  at  work  see  C.  A.  Beard,  American  Government  and  Politics, 

P-  579- 


workers 


THE  ORGANIZATION  OF  THE  ELECTORATE     59 

As  has  been  described,  the  political  system  of  the  states  is  Reasons  for 
complex.    In  order  that  the  electorate  may  ultimately  express  ence  of  the 
its  will,  many  things  have  to  be  done  and  many  requirements  ^^^^o"^.' 
met.    The  ordinary  man  voter  is  busy  about  his  own  affairs —  piexity  of 

,  ,  .         .  the  political 

too  busy  to  remember  the  date  when  the  nomination  papers  system 
for  the  primary  must  be  filed,  too  busy  to  circulate  the  neces- 
sary petitions,  too  busy  to  make  sure  that  there  are  enough 
names  on  the  ticket  for  the  many  offices  to  be  filled.  The 
party  organization  performs  this  for  him.  The  active  members 
in  the  party  organization  are  experts  in  the  complicated  pro- 
visions of  the  election  laws.  They  know  what  must  be  done, 
how  it  must  be  done,  and  when  it  must  be  done.  The  average 
voter  does  not. 

Added  to  the  complications  of  the  process  of  election  is  (2)  Fre- 
the  fact  that  elections  take  place  almost  annually.  Not  only  elections 
must  arrangements  be  made  for  this  annual  affair,  but  in 
certain  states  the  work  of  the  active  politician  must  begin  for 
the  next  election  almost  as  soon  as  the  officer  chosen  at  the 
preceding  election  has  taken  his  seat.  This  requires  almost 
constant  activity  on  the  part  of  someone.  By  common  consent 
it  has  been  delegated  to  the  organization  of  the  party. 

Not  only  are  elections  frequent,  but  at  each  the  voters  must  (3)  Muiti- 
express  their  opinions  upon  a  multitude  of  candidates.  In  candidates 
some  state  elections  there  may  be  twenty  or  thirty  officers 
chosen  at  a  single  voting.  The  mass  of  the  electorate  is  vitally 
interested  only  in  the  higher  officers  or  the  members  of  the 
state  legislature.  Little  attention  is  paid  to  the  selection  from 
the  candidates  for  the  other  offices.  Yet  the  party  must  have 
candidates  for  these  offices.  The  average  voter  delegates  their 
selection  to  the  organization,  rather  than  to  perform  the  bur- 
densome task  of  securing  candidates  and  seeing  that  the  neces- 
sary requirements  are  fulfilled  for  placing  their  names  upon 
the  ticket. 

The  officers  of  the  successful  party  have  considerable  pat-  (4)  Patron- 
ronage  at  their  disposal.    Before  the  days  of  civil-service  re-  ^^^ 
form  and  competitive  examinations  this  was  unblushingly  put 
at  the  disposal  of  the  leaders  and  party  workers.    Civil-service 
reform    has    somewhat    checked    this    practice.     Nevertheless 


6o        STATE  AND  MUNICIPAL  GOVERNMENT 


Why  party 
organiza- 
tions 

sometimes 
become 
machines 


the  successful  party  still  has  at  its  disposal  many  appoint- 
ments to  offices  exempt  from  the  rules.  Not  only  has  the 
winning  party  patronage,  but  its  officers  frequently  have  it  in 
their  power,  through  the  award  of  contracts,  the  grant  of  fran- 
chises, and  the  control  of  the  state  funds,  to  reward  their  sup- 
porters. Also,  in  their  discretionary  administration  of  the  law 
they  may  hamper  even  the  legitimate  activities  of  certain  cor- 
porations. Thus  it  may  happen  that  certain  interests  with  no 
desire  to  profit  by  illegal  acts  will  contribute  to  the  support  of 
a  machine  in  order  to  insure  the  election  of  friendly  officials. 
Other  interests  may  be  frankly  corrupt  and,  contribute  to  the 
support  of  a  machine  in  order  that  they  may  benefit  by  the 
illegal  acts  of  the  officials  controlled  by  the  machine  or  gain 
immunity  for  their  own  illegality. 

Party  organizations  are  necessary,  but  they  are  not  neces- 
sarily bad.  Even  at  the  worst  a  most  tyrannical  party  organi- 
zation accomplishes  many  functions  which  the  ordinary  voter 
would  be  unable  to  perform.  The  very  burden  on  the  elec- 
torate tempts  the  organization  to  become  a  machine.  By  its 
control  of  the  officers  of  the  state  it  controls  the  policy  and 
dictates  the  action  of  the  government  for  its  own  end.  This 
temptation  is  recognized  by  persons  and  interests  who  desire 
special  favor  from  the  government.  Thus  it  happens  that  a 
necessary  and  a  good  instrument  has  in  many  states  been 
prostituted  to  selfish  and  corrupt  purposes. 


CHAPTER  IV 
THE  ELECTORATE  IN  ACTION 

The  Primaries 

In  order  to  ascertain  whether  the  voters  have  met  the  quali-  Regis- 
fications  for  suffrage,  and  to  be  sure  that  none  but  those  *'^*^'°° 
qualified  actually  vote,  some  system  of  registration  is  neces- 
sary. In  all  the  states  there  are  boards  of  registration  in  each 
voting  district  who  enroll  the  would-be  voters  on  their  lists 
and  assure  themselves  that  the  requirements  have  been  ful- 
filled. This  is  done  but  once — in  some  states,  upon  the  voter's 
making  his  original  application  for  enrollment  or  upon  his 
reaching  the  legal  age.  Thereafter  the  registrars  and  their 
assistants  are  supposed  to  make  a  canvass  and  to  remove  from 
the  voting  lists  the  names  of  those  who  have  left  the  district 
or  who  have  died.  In  small  communities  this  may  be  suf- 
ficient, inasmuch  as  the  members  of  the  community  are  well- 
acquainted  with  one  another,  but  in  larger  communities  the 
door  is  open  for  fraud.  Names  once  on  the  list  are  used  by 
persons  who  cannot  meet  the  proper  qualifications,  and  not 
infrequently  the  voting  list   is  scandalously  padded. 

To  prevent  these  evils  certain  states  have  adopted  for  the  Personal 
larger  communities  a  system  of  personal,  annual  registration,  registration 
The  Pennsylvania  laws  of   1906  and   191 1   may  be  taken  as 
examples  of  a  very  stringent  kind.    According  to  these  acts 
the  voter  must  give  to  the  registration  officers  the  following 
information : 

Name  in  full,  occupation,  street  and  number  of  residence,  whether 
he  is  a  lodger,  lessee,  or  owner ;  if  a  lodger  or  lessee  of  only  a  por- 
tion of  the  house,  the  location  or  number  of  the  room  or  floor; 
the  length  of  residence  in  the  district  and  State ;  place  of  birth 
and  production  of  naturalization  papers,  if  an  alien ;  evidence  of 

61 


62         STATE  AND  MUNICIPAL  GOVERNMENT 

the  payment  of  taxes ;  personal  description,  color,  height,  age,  and 
weight ;  and  the  voter  is  required  to  sign  his  name  in  the  registra- 
tion books,  if  able  to  write. ^ 

New  York,  in  1908,  adopted  a  similar  law  for  cities  of  over 
a  million  population  and  required  the  voter  to  answer  the  same 
questions  on  election  day  that  he  had  answered  at  registration 
should  his  right  to  vote  be  challenged.  In  the  Southern  states 
which  have  attempted  to  disfranchise  the  negroes  the  registra- 
tion officers  are  given  so  great  a  discretionary  power  that  they 
may  enfranchise  whites  and  disfranchise  blacks.  Particularly 
is  this  true  when  applied  to  illiterate  voters,  who  may  satisfy 
the  qualifications  by  giving  a  reasonable  interpretation  of  a 
section  of  the  constitution  when  read  to  them.  In  some  cities 
the  police  distribute  and  collect  registration  blanks  for  each 
qualified  voter.  They  are  then  turned  over  to  a  board  of 
registrars  for  their  guidance  in  preparing  the  list. 

The  work  of      The  Organization,  or  the  machine,  is  active  at  registration. 

zation  in      It  is  the  desire  of  each  party  to  have  all  its  potential  members 

registration  i-ggig^ered  and  to  prevent  its  opponent  from  registering  fraud- 
ulently. It  might  be  thought  that  the  voters  themselves 
would  be  interested  enough  to  perform  this  duty  unaided,  but 
experience  has  shown  that  this  is  not  the  case.  Where  annual 
registration  is  required,  voters  must  be  reminded  of  the  neces- 
sity, and  certain  ones  transported  to  the  place  of  registration. 
In  large  cities  the  major  parties  sometimes  employ  experts  to 
guard  against  fraudulent  registration.  For  example,  in  1910, 
the  Republican  committee  of  New  York  County  spent  $27,000 
for  this  purpose.-  A  proper  political  organization  will  not 
attempt  to  have  names  put  on  the  list  fraudulently,  but  a 
machine  is  likely  to  do  so.  It  gives  the  machine  just  so  many 
more  instruments  to  utilize  in  the  primaries  and  elections  in 
order  to  make  sure  that  its  purpose  will  be  accomplished. 

The  primary  In  theory  registration  is  a  nonpartisan  affair,  and  the  first 
formal  act  of  the  organized  party  is  taken  in  the  primaries. 

^Sec  r.  O.  Ray,  An  Introduclion  to  Tolitical  Tarties  and  Practical 
Politics   (rev.  cd.),  p.  302. 

2Hcrl)(Tt  Parsons,  "Why  a  Poliliral  Party  Needs  Money,"  Outlook, 
Vol.  XCV'I,  p.  351. 


THE  ELECTORATE  IN  ACTION  63 

A  primary  may  be  defined  as  a  meeting  of  the  members  of 
the  party  to  perform  certain  functions.  It  is  not  an  assembly 
of  delegates  like  the  convention,  but,  like  the  old  New  Eng- 
land town  meeting,  is  a  primary  assembly  of  the  voters  for 
certain  purposes. 

At  the  primaries  three  functions  are  generally  performed:  Functions 
(i)  The  party  members  may  choose  some  of  the  officials  of  p„ji,ary: 
the  party.    In   the  old   days   the  party   committees   for   the  (i)  chooses 
smaller  political  units  were  chosen  in  the  primaries,  while  even  o^^cfais 
now  in  some  states  the  members  of  the  state  committees  and  (2)  Nomi- 
all  subordinate  committees  are  so  chosen.    (2)   Primaries  al-  dfdates 
ways  nominate  certain  candidates.    Formerly  these  were  for  (3)  Elects 
the  less  important  offices  for  which  no  nominating  conventions  for^n^oml- 
were  deemed  necessary.    Where  the  direct  primary  is  estab-  yg^^^fng""' 
lished  it  nominates  for  all  offices.    (3)  At  the  primaries  are 
chosen   the  delegates  for   the  nominating   conventions.    This 
was  its  chief  function  formerly,  but  with  the  spread  of  the 
movement  for  the  direct  primary  and  the  decline  of  the  con- 
vention system  it  is  less  important.^ 

The  primaries  are  summoned  upon  the  call  of  the  committee  organiza- 
of  the  party.    Before  state  regulation  extended  to  party  affairs  primaries 
the  committee  had  almost  complete  power.    At  present,  how- 
ever, most  states  prescribe  the  days  on  which  the  primaries 
shall  be  held,  set  the  hours  between  which  the  primary  may 
take  place,  and  still  further  regulate  the  procedure. 

In  former  times  the  committee  was  sometimes  known  to  irreguiari- 
summon  a  ''snap"  primary;   that  is,  one  without  due  notice,  former 
Committees  have  been  known  to  organize  and  hurry  through  f^'^^^ 
the  proceedings  of  a  primary  without  giving  the  party  mem- 
bers  an   opportunity   to   vote.     In   some   cases    more   violent 
methods  were  practiced,  and  rival  factions  would  take  posses- 
sion of  the  primary  and  by  force  prevent  their  opponents  from 
voting.    To  prevent  these  practices   most  states  subject  the 
primary  to  legal  regulation. 

lAs  will  be  explained,  the  direct  primary  actually  nominates  candi- 
dates, while  the  old-fashioned  primary  usually  elects  delegates  to  a  con- 
vention to  nominate  candidates.  Where  both  the  direct  primary  and  the 
conventions  are  used  candidates  may  be  nominated  in  both  ways. 


64        STATE  AND  MUNICIPAL  GOVERNMENT 


(i)  Regis- 
tration 


Procedure  in  At  the  Opening  of  a  primary  a  chairman  and  certain  officers 
primaries  ^^^  elected  if  these  have  not  been  previously  designated  by  the 
committee.  Formerly,  in  New  England,  the  primary  had  some 
of  the  elements  of  the  old  town  meeting,  and  debate  was  pos- 
sible; but  at  present  practically  all  that  is  done  is  to  cast 
and  count  votes.  The  officers  of  the  primary  supervise  the 
checking  of  the  names  of  the  voters  and  the  counting  of 
the  ballots.  At  the  close  of  the  primary  the  officers  certify 
the  results  to  the  proper  state  authorities,  and  the  candidates 
duly  nominated  appear  on  the  ticket  at  the  election,  or  the 
party  officials  and  delegates  chosen  at  the  primary  receive 
their  credentials. 
Party  tests:  Since  a  primary  is  a  meeting  of  the  members  of  a  party, 
it  is  necessary  to  devise  some  test  to  determine  who  shall  vote. 
Various  practices  have  prevailed  in  the  different  states  at  vari- 
ous times.  But  the  most  common  may  be  grouped  as  follows : 
The  method  of  registration  presents  two  types :  In  New 
York,  when  the  voter  registers  for  election  he  fills  out  a  blank 
stating  with  which  party  he  intends  to  cooperate.  In  Massa- 
chusetts registration  is  accomplished  by  the  voter's  asking 
for  the  ballot  of  a  particular  party,  thereby  automatically 
enrolling  himself  in  that  party.  In  either  type  of  registration 
the  voter  may  not  attend  the  primary  of  another  party  nor 
change  his  enrollment  except  by  making  a  written  declaration 
of  change  at  a  specified  time — thirty,  sixty,  or  ninety  days 
before  the  date  of  the  primary.  The  second  method  of  deter- 
mining party  allegiance  is  to  administer  an  oath  to  the  appli- 
cant. Ordinarily  the  members  of  the  party  are  known  to  the 
primary  officials  and  in  most  cases  are  allowed  to  vote  without 
question.  When,  however,  they  suspect  that  the  applicant  is 
not  a  member  of  the  party,  some  states  allow  them  to  decline 
to  receive  his  vote  unless  he  takes  an  oath  to  the  effect  that- 
he  has  not  attended  the  primary  of  another  party  and  that 
he  expects  to  support  the  ticket  nominated  at  this  primary. 
In  Rhode  Island  and  some  of  the  Southern  states  admission 
to  the  primary  is  entirely  in  the  hands  of  the  party  organiza- 
tion, 'ihe  state  allows  the  party  to  make  such  rules  as  it 
thinks  proper. 


(2)  Oath 


(3)  Party 
rules 


THE  ELECTORATE  IN  ACTION  65 

In  small  communities,  where  the  voters  are  known  to  one  Merits  and 
another,  the  primary  system  has  many  merits.  It  enables  the  p^"mary  ^'^^ 
voters  to  come  together  and,  after  discussion,  to  make  their  system 
selections.  But  this  ideal  system  was  seldom  realized.  The 
more  substantial  or  intelligent  citizens  were  apathetic  and  dis- 
liked to  mingle  with  the  mass  of  voters.  Attendance  at  the 
primaries  was  extremely  small,  varying  from  i  to  10  per  cent 
of  the  voters.  It  must  be  confessed,  moreover,  that  at  times 
the  primaries  were  so  disorderly  that  decent  citizens  felt  out 
of  place.  Largely  because  of  the  apathy  of  the  good  citizens 
the  primaries  fell  into  the  hands  of  the  professional  politicians 
or  of  the  machine  or  ring.  They  dictated  the  names  to  be 
nominated;  they  "ran"  the  primary;  they  "made  the  slate"; 
and,  since  the  primary  was  generally  attended  by  few  beyond 
the  supporters  of  the  machine,  the  ring  was  generally  success- 
ful. Because  of  these  evils  and  because  of  the  perversion  of  the 
convention  system  a  new  method  was  devised  by  which  it  was 
hoped  that  decent  citizens  might  be  induced  to  take  part  in  the 
nomination  of  the  candidates  and  that  the  party  might  be 
made  subject  to  popular  control.    This  was  the  direct  primary. 

As  has  been  seen,  the  chief  function  of  the  old  primary  The  direct 
was  to  choose  delegates  to  the  conventions.  The  new  direct  p"™^^^ 
primary  at  its  meeting  actually  nominates  the  candidates  of 
the  party  for  positions  to  be  filled  at  the  coming  election.  In  the 
old  system  the  party  officials  were  generally  chosen  for  the 
more  important  committees  at  conventions ;  in  the  new  system 
the  voters  chose  these  officials  directly.  It  is  an  attempt  to 
put  into  the  hands  of  the  voters  the  choice  of  their  candidates 
and  the  officers  of  the  party  without  the  mediation  of  the 
convention.  To  sum  up,  the  old  primary  was  but  a  cog  in  the 
nominating  machinery.  It  chose  delegates  to  a  convention  to 
nominate  the  candidates.  The  new  direct  primary  is  the  nomi- 
nating machine.  It,  by  itself,  without  the  mediation  of  the 
convention,  nominates  the  candidates.  When  the  convention 
is  used  with  the  direct  primary  it  is  not  used  for  nominations, 
although  some  may  be  made,  but  to  frame  the  platform  or  for 
some  other  purpose.  The  direct  primary  diminishes,  if  it  does 
not  destroy,  the  necessity  of  the  convention. 


66 


STATE  AND  MUNICIPAL  GOVERNMENT 


state 
control 


Procedure 


Open  and 

closed 

primaries 


Another  difference  between  the  direct  primary  and  the  for- 
mer system  is  seen  in  the  extension  of  state  control.  Formerly 
the  party  officials  were  responsible  for  the  conduct  of  the 
primaries,  and  the  officials  or  interested  candidates  for  the 
preparation  of  the  ballots.  Under  the  new  system  there  are 
elaborate  state  laws  prescribing  the  organization  and  procedure 
of  the  primaries,  and  the  ballots  are  prepared  and  printed  at 
public  expense  under  the  supervision  of  officers  who,  in  per- 
forming this  function,  are  supposed  to  be  nonpartisan. 

Nomination  by  direct  primary  is  accomplished  by  several 
steps.  The  names  of  the  candidates  are  placed  upon  the  pri- 
mary ballot  as  the  result  of  petition.  These  petitions  require 
a  number  of  names  of  bona-fide  registered  voters,  varying  in 
proportion  with  the  importance  of  the  office.^  The  signatures 
on  petitions  must  be  submitted  to  the  registrar  of  voters  or 
some  other  official  who  certifies  their  correctness.  The  ballot 
is  then  prepared  by  the  proper  authority — the  secretary  of 
state  for  state  officials ;  the  city  or  town  clerk  for  municipal 
or  town  elections.  In  all  cases  the  ballot  is  of  the  so-called 
Australian  type,  which  requires  the  voter  to  mark  the  names 
of  the  candidates  for  whom  he  desires  to  vote.-  After  the 
ballots  have  been  counted  and  the  result  certified,  they  are 
returned  to  the  designated  authority  and  preserved  against  the 
possibility  of  a  demand  for  a  recount.  In  the  direct  primary 
there  is  no  opportunity  for  discussion ;  it  is  nothing  more  nor 
less  than  a  preliminary  party  election. 

There  are  two  kinds  of  direct  primaries — open  and  closed. 
At  the  open  primary  any  qualified  registered  voter  may  take 
part.  It  is  therefore  not  a  meeting  of  the  members  of  the 
party  held  prior  to  the  election  to  nominate  candidates,  but  a 
preliminary  election.  At  the  closed  primary  only  the  members 
of  the  party  are  admitted.    Party  allegiance  is  determined  by 

1  Sometimes  a  percentaRC  of  the  registered  voters  is  required,  but  in 
Massachusetts  it  is  a  fixed  number — for  state  officers  a  thousand  voters; 
for  municipal  officers  and  town  officers  not  less  than  five  voters  for  each 
ward  in  the  district.  See  C.  A.  Heard,  American  Government  and  Politics 
(3d  ed.),  p.  3Q3,  for  a  discussion  of  methods  by  which  names  are  placed 
on  the  ballot  and  their  order. 

-See  pages  92-99. 


THE  ELECTORATE  IN  ACTION  67 

some  sort  of  test.  Could  a  test  be  devised  which  would  not 
defeat  the  advantages  obtained  by  the  secrecy  of  the  ballot, 
the  closed  system  would  be  ideal.  If  a  primary  is  a  meeting 
of  the  members  of  a  party,  it  certainly  should  be  confined  to 
party  members.  This  theoretical  conclusion  is  reenforced  by 
experience  under  the  open  primary  system.  Cases  have  been 
known  where  a  party  machine,  fearing  defeat,  has  boldly  ad- 
mitted members  of  an  opposing  party  to  vote  in  its  primary 
in  order  to  perpetuate  its  rule.  The  closed  primary  attempts 
to  prevent  such  action  and  to  make  the  primary  what  it  should 
be — not  a  preliminary  election,  but  a  meeting  of  the  members 
of  the  party  to  choose  the  candidates  of  the  party  for  the 
coming  election.  The  weight  of  evidence  and  experience  seems 
to  incline  to  the  closed  primary.  The  argument  that  it  de- 
stroys the  secrecy  of  the  ballot  by  compelling  the  voters  to 
disclose  their  party  affiliations  has  little  merit.  No  voter  need 
take  part  in  the  primaries,  and  those  voters  who  do  should  cer- 
tainly be  willing  to  accept  the  responsibility  and  the  publicity 
of  being  declared  party  members.  The  arguments  against  the 
closed  primary  are  in  fact  aimed  at  party  government  and 
are  directed  towards  the  establishment  of  some  method  of 
nonpartisan  nomination. 

The  obvious  evils  of  the  partisan  method  of  nomination  have  Nonpartisan 

...  rT^i  ,  ,  primaries 

led  to  advocacy  of  nonpartisan  primaries.  Ihese  have  been 
attempted  in  municipal  affairs,  where  at  times  the  separation 
of  state  issues  from  city  politics  has  seemed  desirable.  The 
system,  however,  was  first  applied  to  the  nomination  of  candi- 
dates for  judicial  offices,  since  it  was  evident  that  the  party 
primary,  as  employed  for  the  selection  of  judges,  was  even 
more  unfortunate  than  their  nomination  by  convention.  Par- 
tisan appeals  were  out  of  place  in  the  determination  of  a 
candidate  for  the  bench.  In  1913  three  states  adopted  this 
method^  and  other  states  followed  their  example.-  In  some 
states  the  law  provides  that  voters  at  all  primaries  shall  receive 
a  special   ballot  on  which  the  names   of   the  candidates   for 

1  California,  Ohio,  Washington. 

^Minnesota,  1912;   Idaho,  Iowa,  Kansas,  Missouri,  Nebraska,  Penn- 
sylvania, 1913. 


68        STATE  AND  MUNICIPAL  GOVERNMENT 

judicial  offices  are  printed  and  that  each  voter  shall  be  allowed 
to  vote  for  but  one.  The  names  of  the  two  candidates  for  each 
office  who  receive  the  highest  vote  are  then  placed  upon  the 
ticket.  In  1913  the  nonpartisan  primary  system  was  adopted 
in  California  for  county  offices  and  in  191 2  for  the  candidates 
to  the  state  legislature  in  Minnesota. 
The  merits  The  obvious  advantage  of  the  nonpartisan  primary  is  that  it 
nonpartisan  does  away  with  the  tests  of  party  membership.  It  relieves 
primary  jj^g  State  from  the  responsibility  of  preserving  the  integrity  of 
the  parties.  It  enables  voluntary  organizations  to  put  their 
candidates  on  the  ballot  on  the  same  terms  as  the  party  organi- 
zations, nominees  no  longer  having  the  advantage  of  bearing 
the  party  designation.  The  obvious  disadvantage  is  that  it 
strikes  a  blow  at  the  party  system.  Party  organizations  and 
even  machines  are  held  responsible  for  the  candidates  they 
select.  The  average  voter  frequently  needs  and  welcomes  the 
advice  which  comes  to  him  from  the  official  indorsement  of  a 
candidate  by  a  party  committee  or  convention.  Those  who 
regard  parties  as  the  source  of  many  of  the  evils  of  government 
welcome  the  introduction  of  the  nonpartisan  primary.  Those, 
however,  who  believe  that  parties  are  necessary  and  oftentimes 
helpful  instruments  in  the  process  of  election  deprecate  any- 
thing which  injures  their  influence.  They  therefore  condemn 
the  nonpartisan  primary. 
The  effect  The  movement  for  the  direct  primary  has  spread  throughout 
rect  primary  the  United  States.^  This  movement  was  bitterly  attacked  at 
first  by  the  organizations  and  enthusiastically  welcomed  by 
reformers.  It  has  been  in  operation  a  sufficient  length  of  time 
to  make  an  estimate  of  its  merits  and  faults  possible. 
Merits  and        The  direct  primary  was  enthusiastically  hailed  by  those  who 

faults  of  ,  .  .._,,,. 

the  direct     resented  the  power  of  the  party  organization.    The  selection 

primary:       ^j  committees  in  conventions  and  the  action  of  the  conventions 

themselves  seemed  to  take  the  control  of  the  party  out  of  the 

^AII  but  Connecticut,  Delaware,  North  Carolina,  New  Mexico,  and 
Rhode  Island  have  direct  primaries  of  some  description.  In  Alabama, 
Arkansas,  Georgia,  South  Carolina,  and  Texas  these  are  held  under 
party  rule  and  not  made  compulsory  by  statute. — American  Year  Book 
(1920),  p.  209 


THE  ELECTORATE  IN  ACTION  69 

hands  of  the  voters  and  to  rest  it  in  the  hands  of  a  select  few  d)  Democ- 
who  appeared  almost  irresponsible.  This  distrust  was  strength-  party 
ened  by  certain  notorious  instances  where  the  party  organiza-  ™^chinery 
tion  totally  misrepresented  the  desires  of  the  voter.  It  seemed 
that  if  the  voters  could  choose  the  party  officials  directly  at 
their  primary  meetings  they  would  control  the  party  organiza- 
tion and  its  destinies;  that  they  would  "break  the  power  of  the 
organization."  Where  the  organization  was  a  corrupt  machine, 
misrepresenting  the  desire  of  the  voters,  this  was  a  laudable 
purpose.  Where,  however,  a  true  political  organization  existed, 
although  beyond  the  immediate  control  of  the  voters,  yet  re- 
flecting their  desires,  it  would  be  a  misfortune  to  break  such 
an  organization.  The  complicated  processes  of  nomination 
and  election  necessitate  organization.  Organizations  require 
time  and  experience  in  order  to  perform  their  tasks  satisfac- 
torily. Constant  change  weakens  the  organization  and  defeats 
the  very  purpose  for  which  it  was  created. 

The  high  hopes  of  the  reformers — that  the  direct  primary  [Direct 
would  destroy  the  machine — have  been  disappointed.    It   is  ^"0*01"^^ 

true  that  the  organizations  have  been  hampered  in  their  work,  destroy  the 
°  ^  '  power  of  the 

and  in  some  instances  they  have  been  made  more  directly  machine] 
responsible  to  the  voters.  However,  in  those  communities 
where  a  machine  existed  the  machine  has  been  able,  with  a 
little  more  effort,  to  control  the  primaries  almost  as  success- 
fully as  it  controlled  the  convention.  Under  the  old  system  of 
primaries  only  the  loyal  party  members  attended.  Under  the 
new  system,  while  a  larger  percentage  of  the  voters  are  present, 
the  majority  attending  are  still  the  faithful  supporters  of  the 
organization.  The  merit  of  the  direct  primaries  in  destroying 
the  machine  is  potential  rather  than  actual. 

The  advocates  of  the  direct  primary  claimed  that  it  would  (2)  Encour- 

,  ,  ,  ,     ~,       .      ages  active 

encourage  more  active  participation  by  the  rank  and  tile  in  work 
the  affairs  of  the  party.  In  a  large  measure  experience  has 
substantiated  this  claim.  It  must  be  confessed,  however,  that 
in  many  communities  the  activities  of  the  rank  and  file  are 
confined  to  signing  the  nomination  papers  which  are  placed 
before  them  by  the  organization  or,  at  most,  to  attending  the 
primaries  and  marking  the  tickets  prepared  for  them  by  the 


70        STATE  AND  MUNICIPAL  GOVERNMENT 

organization.  Nevertheless  it  is  frankly  admitted  that  since 
the  process  of  getting  the  name  on  the  ticket,  and  thus  be- 
fore the  voters,  is  open  to  any  member  or  group  of  members 
of  the  party,  there  is  the  opportunity  freely  given  to  all  mem- 
bers to  express  their  opinion  and  to  engage  in  the  direc- 
tion of  the  affairs  of  the  party.  This  has  its  good  and  bad 
effects.  If  the  rank  and  file  are  genuinely  interested  in  party 
affairs  and  are  willing  not  merely  to  be  active  but  to  assume 
a  measure  of  responsibility,  the  direct  primary  has  accom- 
plished a  great  deal.  As  has  been  shown,  an  oppressive  organi- 
zation of  a  party  or  a  political  machine  can  exist  only  on  the 
sufferance  or  desire  of  the  members  of  the  party.  Indifference 
or  unwillingness  to  perform  the  necessary  drudgery  of  a  party 
organization  more  frequently  permits  machine  rule  than  does 
the  actual  desire  for  corruption  on  the  part  of  the  voters.  If 
the  members  of  the  party  are  genuinely  interested  in  the  party 
and  are  willing  to  do  their  share  in  managing  its  affairs,  then 
the  direct  primary  is  an  excellent  device  to  enable  them  to 
express  their  desires  and  assume  responsibilities.  If,  however, 
activity  means  mere  meddlesomeness,  a  desire  to  exercise 
power  without  assuming  responsibility,  the  direct  primary  may 
be  the  means  of  ruining  a  good  political  organization.  Even  at 
their  worst,  party  organizations  accept  the  responsibility  for 
their  acts  and  attempt  to  carry  out  with  considerable  consist- 
ency the  policies  for  which  they  stand.  Organizations  are  more 
stable  than  temporary  coalitions  of  voters. 
(31  Secures  Another  claim  of  the  advocates  of  the  direct  primary  was  that 
the  system  would  secure  better  men  as  party  candidates.  The 
evidence  on  this  point  is  conflicting.  Without  doubt  the  direct 
primary  gives  to  the  party  members  an  opportunity  to  reject 
a  corrupt  candidate  who,  under  the  convention  system,  might 
be  foisted  on  the  party  at  the  dictates  of  a  machine.  Too  many 
times  machines  or  organizations  have  been  guilty  of  this.  Yet 
in  those  states  where  the  organization  existed  for  the  genuine 
advancement  of  the  party  interests,  this  accusation  could  sel- 
dom be  proved.  There  the  organization,  not  from  any  superior 
virtue,  but  from  shrewd  political  wisdom,  scrutinized  with  care 
the  qualifications  of  all   the  candidates.    The  direct  primary 


better  men 


THE  ELECTORATE  IN  ACTION  71 

does  not  give  this  opportunity.  Without  doubt  the  voters  do 
examine  with  some  care  the  candidates  for  the  more  important 
offices,  but  the  candidates  for  the  minor  offices  are  frequently 
unknown  to  the  rank  and  file.  They  are  put  on  the  ticket  as 
the  result  of  the  activities  of  their  friends,  and  the  average 
voter  is  sometimes  confronted  by  the  names  of  several  candi- 
dates, about  none  of  whom  does  he  know  anything.  Theoreti- 
cally, the  voter  should  have  informed  himself  concerning  the 
merits  of  these  candidates;  practically,  he  does  not.  It  has 
thus  happened  in  at  least  one  state  that  such  an  important 
officer  as  the  state  treasurer  received  the  party  nomination 
through  the  resemblance  in  the  spelling  of  his  name  to  that  of 
the  former  treasurer,  and  the  voters  unconsciously  nominated 
and  later  elected,  under  misapprehension,  an  officer  whose 
administration  was  so  dubious  that  he  was  forced  to  resign 
before  his  term  had  expired. 

The  direct  primaries  bring  out  a  larger  vote  wherever  there  (4)  Brings 
is  a  contest.  The  evidence  on  this  point  is  overwhelming.  Hl^^  "^" 
They  give  to  the  ordinary  voter  the  opportunity  directly  to 
express  his  opinion.  In  many  communities  this  is  eagerly 
sought.  Where  the  vote  at  the  primary  represents  the  intelli- 
gent opinion  of  the  voters,  it  is  of  great  advantage,  for  it 
strengthens  the  party  and  encourages  the  organization.  Where, 
however,  the  vote  is  unintelligent  and  ignorant,  little  advan- 
tage can  be  seen  in  increasing  its  size.  The  intelligence  of 
the  vote,  rather  than  its  size,  should  be  sought. 

The  direct  primary  is  really  a  preliminary  election  within  (5)  its  de- 

-,.,,,.  .     ,  r        J-  cision  final 

the  party.  Like  other  elections,  it  leaves  no  room  for  discus- 
sion and  compromise,  but  its  action  is  final  and  conclusive. 
In  the  convention  system  the  merits  of  the  candidates  may  be 
discussed  and  their  chances  canvassed,  and  the  various  votes 
which  are  taken  for  nomination  may  show  the  relative  strength 
of  the  candidates  and  disclose  their  strength  and  weakness. 
The  best  candidate  or  the  best  ticket  is  not  always  the  one 
which  appeals  to  the  greatest  number.  In  making  up  a  ticket 
considerations  of  geography  and  of  race  and  differences  of 
opinion  concerning  party  policy  must  be  considered.  In  the 
convention  these  can  be  discussed,  weighed,  and  compromised. 


72         STATE  AND  MUNICIPAL  GOVERNMENT 

Not  so  in  the  direct  primary.  x'\ppeal  and  argument,  it  is  true, 
precede  the  vote,  but  nomination  by  the  direct  primary  is 
is  if  the  candidates  were  nominated  at  a  convention  where 
every  party  member  was  a  delegate  and  where  the  first  ballot 
was  conclusive. 

(6)  Gives  The  criticism  perhaps  most  frequently  leveled  at  the  direct 
ioTde^^^^  primary  is  that  it  gives  opportunity  for  a  demagogic  appeal, 
gogues          A^  candidate  for  nomination  is  pictured  as  traveling  about  his 

constituency,  appealing  to  the  self-interest  of  the  voters,  and 
promising  favors  in  return  for  support.  In  some  cases  this 
may  be  true.  It  is  admitted,  however,  that  in  such  instances 
substantially  the  same  appeals  to  the  same  motives  may  be 
made  by  the  candidates  of  the  opposing  parties  once  they  are 
nominated.  It  may  well  be  doubted  whether  this  accusation 
has  very  much  force. 

(7)  Prevents  It  is  Said  that  the  direct  primary,  involving  as  it  does  a 
fronf con-^^  popular  appeal  directly  to  the  voters,  prevents  the  better  class 
testing        Qf  party  members  from  attempting  to  secure  the  nomination. 

This  may  be  true,  but  it  would  seem  that  the  contention  is 
without  merit.  If  a  candidate  for  public  office  is  unwilling 
to  submit  his  record  and  to  appear  before  his  constituents, 
he  has  little  claim  upon  their  support.  Such  men,  when  nomi- 
nated by  the  old  convention  system,  expected  to  be  carried  into 
office  by  the  momentum  of  the  party  organization.  A  more  valid 
objection  and  one  which  may  deter  a  certain  class  of  men  is 
found  in  the  fact  that  the  direct  primary  may  require  two 
campaigns — one  for  nomination  and  a  second  for  election. 
This  may  justly  be  considered  to  impose  too  great  a  burden 
upon  candidates  of  a  certain  type. 

(8)  Involves  Since  nomination  by  the  direct  primary  entails  two  cam- 
expense        paigns,  it  also  involves  a  larger  personal  expenditure  by  the 

candidates  and  thus  may  militate  against  the  nomination  of 
candidates  who  have  little  means.  Such  candid^ites,  when 
nominated  by  the  convention  system,  had  their  campaign  ex- 
penses paid  by  the  party  organization.  In  the  matter  of  nomi- 
nation the  party  organization  cannot  properly  defray  the 
expense  of  one  candidate  and  not  of  the  other  contestants. 
Thus   the  expense   must   be  borne  either  by   the  contesting 


THE  ELECTORATE  IN  ACTION  73 

candidates  themselves  or  by  their  friends  and  supporters.  This 
gives  the  opportunity  for  certain  groups  or  interests  to  make 
their  influence  count  to  an  unfair  degree  and  works  against 
the  chances  of  a  contestant  of  few  resources,  unsupported  by  a 
group  of  large  means.  In  many  states,  however,  the  expenditures 
of  contestants  for  nomination  are  as  carefully  regulated  by  law 
as  those  of  candidates  for  election,  and  the  criticism  loses  some 
force.  Nevertheless  it  must  be  admitted  that  the  direct  primary 
has  seriously  increased  the  expense  of  the  candidates. 

In  most  states  a  plurality  of  votes  cast  is  sufficient   for  (9)  Danger 
nomination.    There  is  here  a  grave  danger  that  the  candidate  by*the" 
nominated  may  be  only  the  choice  of  a  minority  of  the  party.  ^^'^°^^^y 
Thus  it  has  happened  not  infrequently  that  groups  within  the 
party  have  put  on  the  primary  ticket  names  of  candidates  for 
whom  there  was  little  chance  of  success,  for  the  sole  purpose 
of  dividing  the  strength  of  their  opponents.    It  has  also  hap- 
pened that  men  of  force  and  character  have  refused  to  contest 
the  nomination  lest  the  division  of  their  strength  might  result 
in  the  choice  of  an  inferior  candidate. 

Various  methods  have  been  attempted  to  avoid  this.  In  the  [safeguards 
Southern  states  a  rule  has  been  introduced  that  the  successful  minority 
contestant  must  receive  an  absolute  majority.  If  none  receives  ^^^^^^^ 
such  a  majority  a  second  ballot  is  taken  on  the  two  highest 
candidates.  By  the  Iowa  law  of  1907  the  contestants  for  party 
nominations  for  the  county,  state-district,  and  state  offices 
must  receive  not  less  than  35  per  cent  of  the  total  party  vote. 
In  case  no  candidate  receives  this,  nomination  is  made  by  a 
regularly  constituted  convention.  In  the  Idaho  and  Wisconsin 
laws  of  1909  and  191 1,  respectively,  systems  of  preferential 
voting  were  introduced  by  which  the  voter  marked  his  first  and 
second  choices,  and  a  majority  of  the  votes  was  necessary  for 
the  successful  candidate.  In  Idaho  the  largest  number  of  first- 
choice  and  second-choice  votes  is  required,  in  Wisconsin  a  ma- 
jority of  the  first  and  second  choices.  It  seems  clear  that  some 
such  method  should  be  introduced.  The  scheme  in  the  South 
of  requiring  a  second  election  in  case  no  candidate  obtains  a 
majority  puts  too  great  an  additional  burden  upon  the  already 
overloaded   electorate.    The   Iowa   method   may   result   in   a 


74         STATE  AND  MUNICIPAL  GOVERNMENT 

return  to  the  convention  system  with  all  its  advantages  and 
evils.  A  system  of  preferential  or  proportional  voting  is  the 
ideal  way  to  meet  this  evil.  Although  such  systems  are  being 
gradually  adopted  in  Europe,  the  legislatures  and  electorates 
of  the  United  States  seem  to  fear  their  apparent  complexity, 
and  they  have  been  adopted  in  but  few  instances, 
(lo)  Diffi-  Nomination  by  the  direct  primary  fails  to  provide  for  the 

framing  formulation  of  the  principles  for  which  the  party  stands. 
pLatfornT  Under  the  convention  system  this  function  was  performed  in 
advance  by  the  delegates  who  nominated  the  candidates.  This 
is  practically  impossible  in  the  case  of  the  direct  primary. 
Various  attempts  have  been  made  to  meet  this  deficiency.  In 
some  states — New  York  and  Massachusetts,  for  example — 
conventions  are  still  held  where  the  principles  of  the  party  are 
formulated  and  the  platform  drawn  up.  In  such  cases  it  can 
happen  that  the  candidates  chosen  at  the  primaries  may  not 
be  in  harmony  with  the  platform  which  the  party  has  adopted. 
In  Wisconsin  the  formulation  of  the  platform  is  left  to  a  meet- 
ing of  the  candidates  and  party  officials  chosen  by  the  pri- 
maries. A  somewhat  similar  provision  has  been  made  in 
Kansas.  None  of  these  is  altogether  satisfactory.  A  platform 
can  best  be  formulated  in  a  committee  chosen  by  widely  dis- 
tributed party  representatives.  Under  the  convention  system 
this  was  both  theoretically  and  actually  done.  The  drafting 
of  the  platform  and  the  nomination  of  the  candidates  by  the 
same  body  generally  insured  agreement.  To  leave  the  plat- 
form to  the  convention  and  the  nomination  of  the  candidates 
to  the  voters  may,  as  has  been  said,  result  in  a  conflict  of  ideas. 
To  leave  the  formulation  of  the  platform  and  the  selection  of 
party  officials  to  candidates  chosen  at  the  primaries  insures 
agreement  of  candidates  and  principles,  but  does  not  guaran- 
tee satisfaction  to  the  members  of  the  party.  If  party  plat- 
forms were  considered  actually  as  important  as  they  are  in 
theory  these  questions  might  constitute  a  serious  indictment 
against  the  system.  Generally,  however,  the  platforms  framed 
by  the  convention,  the  committee,  or  the  candidates  are  de- 
signed to  attract  votes  and  to  consolidate  criticism  of  oppo- 
nents rather  than  to  set  forth  a  very  definite  party  program. 


THE  ELECTORATE  IN  ACTION  75 

In  1912  South  Dakota  adopted  a  system  which  seems  most  (n)  The 
complicated  if  not  "freakish,"  but  which  was  designed  to  primary law 
meet  the  criticisms  discussed  and  to  insure  popular  control  of  ^^^^o"^** 
the  machinery  of  the  party,  the  choice  of  the  candidates,  and 
the  formulation  of  the  platform.  The  legislature,  in  19 13, 
attempted  to  replace  this  law  by  one  of  a  more  orthodox  type. 
In  191 5  it  succeeded,  but  in  1918  the  Richards  Law  was 
adopted  through  the  initiative  and  referendum  by  a  comfort- 
able majority.  The  law  provides  in  general  for  a  closed  pri- 
mary with  a  party  committee  chosen  by  the  party  voters  of 
each  precinct.  The  unique  features  are  that  it  combines  to  a 
certain  extent  the  representative  convention  with  the  principle 
of  direct  selection.  In  November  of  every  odd-numbered  year 
precinct  elections  are  held  for  the  purpose  of  choosing  one 
member  for  the  county  committee  and  three  county  proposal 
men.  A  county  proposal  meeting  is  held  which  chooses  state 
proposal  men,  who  meet  in  December,  propose  candidates  to 
be  voted  on  at  the  party  primary,  and  frame  a  party  platform. 
Provision  is  made  for  the  minority  to  offer  candidates  and 
make  minority  proposals.  After  this  meeting  the  county  pro- 
posal men  are  reconvened  and  indorse  by  vote  the  various 
candidates  and  issues.  In  March  occur  the  primary  elections, 
which  are  conducted  according  to  the  ordinary  system  of 
direct,  closed  primaries.  A  novel  feature  is  the  provision  for 
the  party  indorsement  of  candidates  for  appointive  positions. 
Applicants  for  such  positions  may  file  their  names  with  the 
secretary  of  state,  who  submits  them  to  the  state  central  com- 
mittee, which — acting  "in  public  session  and  without  sub- 
committees," by  open  ballot  and  majority  in  vote — indorses 
the  candidates.  Provision  is  also  made  for  a  party  recall. 
The  expenses  of  this  system  are  borne  by  the  taxpayers. 
Proposal  men  and  party  committee  men  receive  mileage 
at  the  rate  of  five  cents  a  mile,  and  where  candidates  are 
required  to  debate,  a  compensation  of  ten  cents  a  mile  is 
given  them.  The  expense  of  the  publicity  pamphlet  is  also 
paid  by  the  state.^ 

ipor  a  discussion  of  the  Richards  Law  see  American  Political  Science 
Review,  Vol.  XIV,  pp.  93-105. 


76        STATE  AND  MUNICIPAL  GOVERNMENT 

(la)  conciu-       Many  faults  can  be  found   in   the  direct  primary  system. 


sions 


These  faults  are  both  inherent  and  accidental,  theoretical  and 
practical.  Nevertheless,  in  spite  of  all  criticism — criticism 
which  comes  especially  from  the  party  organizations — the 
direct  primary  commends  itself  to  the  rank  and  file  of  the 
voters.  It  does  give  the  opportunity  for  the  democratic  con- 
trol of  the  party  organization.  It  does  afford  a  chance  in  a 
very  direct  way  to  rebuke  or  overthrow  a  corrupt  machine. 
The  fact  that  it  does  not  always  do  so  and  that  it  sometimes 
produces  unsatisfactory  results  seems  to  weigh  less  in  the 
minds  of  the  voters  than  the  fact  that  the  opportunity  is  theirs. 
In  spite  of  all  criticisms  which  have  been  leveled,  justly  or 
unjustly,  against  the  system,  no  state  adopting  the  system  has 
returned  to  the  old  system  of  nomination  by  party  conven- 
tions, except  New  York.^  With  the  recent  increased  emphasis 
upon  party  regularity  and  the  increased  strength  of  party 
organization  the  attacks  upon  the  direct  primary  have  been 
redoubled.  At  present  it  seems  not  unlikely  that  in  some  states 
the  direct  primary  may  be  abandoned. 

^By  a  law  signed  May  4,  192 1,  New  York  returned  to  the  convention 
system  for  the  nomination  of  candidates  for  governor  and  United  States 
senators,  and  elective  state  officers  and  justices  for  the  Supreme  Court. 
Candidates  for  representatives  to  Congress,  for  the  state  senate  and 
assembly,  and  for  city  and  county  offices  will  continue  in  general  to  be 
chosen  at  the  direct  primaries  by  the  enrolled  voters. 


CHAPTER  V 

THE  CAMPAIGN 

A  political  campaign  may  be  defined  as  an  organized  effort  The 
on  the  part  of  a  political  party  to  elect  its  candidates  to  office.^ 
The  purpose  of  the  campaign  is  to  arouse  the  enthusiasm  of 
the  members  of  the  party  to  the  pitch  that  will  lead  them  to 
vote  the  party  ballot  at  the  polls.  The  campaign  also  attempts 
to  attract  to  the  party  the  independent  vote  which  exists  in 
every  community ;  that  is,  those  voters  who  are  not  deeply 
attached  to  any  one  party  and  who  may  be  led  to  support  the 
issues  or  the  candidates  of  any  party  which  strongly  appeals 
to  them.  A  third  purpose  is  the  attempt  to  gain  their  support. 
Finally,  a  political  campaign  tries  in  various  ways,  some 
subtle  and  some  entirely  open,  to  discredit  and  criticize  the 
candidates  and  principles  of  other  parties. 

Practical  politicians  have  been  known  to  speak  of  campaigns  Kinds  of 
as  "hoop  la"  or  "hurrah"  campaigns;  that  is,  campaigns  ™p  '  °^ 
where  a  noisy  appeal  is  made  to  the  emotions  of  the  voters. 
While  such  an  appeal  is  never  absent  in  any  campaign,  in 
recent  years  its  value  is  generally  discounted.  The  direct  an- 
tithesis of  the  "hoop  la"  has  been  found  in  the  "gum  shoe"  or 
"still  hunt"  campaign.  In  a  performance  of  this  sort  the  at- 
tempt is  made  to  deceive  the  opponents  into  fancied  security 
and  to  convince  supporters  of  the  party  by  quiet  and  per- 
sonal influence.  This  campaign  may  be  very  successful  in 
small  communities,  but  in  large  constituencies  it  is  hardly 
possible  in  its  extreme  form.  A  campaign  of  education  is 
sometimes    widely    advertised.     By    this    is    meant    that    the 

iFor  a  brief  account  of  campaign  methods  see  P.  O.  Ray,  An  In- 
troduction to  Political  Parties  and  Practical  Politics,  chap.  x.  This  is 
briefly  treated  in  Kimball,  National  Government  of  the  United  States, 
pp.  129-135.  For  a  more  extended  treatment  see  M.  Ostrogorski,  Democ- 
racy and  the  Party  System  in  the  United  States,  chaps,  ix,  x. 

77 


78 


STATE  AND  MUNICIPAL  GOVERNMENT 


The  man- 
agement of 
the  cam- 
paign 


The  relation 
of  the  can- 
didates to 
the  party 
committee 


emotional  element  is  discounted,  while  spoken  and  printed  ap- 
peals are  addressed  to  the  voters.  These  appeals  are  nominally 
addressed  to  the  voters'  intelligence.  They  seldom  contain 
palpable  untruths,  but  more  frequently  present  half-truths  or 
distorted  statements  of  facts.  While  nominally  addressed  to 
the  intellect,  these  are  really  subtle  appeals  to  the  emotions. 
Very  rarely  a  campaign  of  vituperation  is  initiated  in  which 
the  parties  and  candidates  make  charges  against  one  another, 
sometimes  with  a  basis  of  truth,  but  occasionally  actually 
libelous.  Public  sentiment  in  most  communities  is  opposed  to 
such  a  method,  and  a  campaign  of  this  sort  frequently  reacts 
upon  its  initiators. 

The  direction  of  a  political  campaign  is  almost  entirely  in 
the  hands  of  the  organization.  The  party  committee,  as  a 
whole,  is  not  generally  active,  although  the  individual  mem- 
bers are  often  consulted  and  have  general  oversight  over  the 
campaign  in  their  particular  districts.  The  executive  commit- 
tee or  some  smaller  subcommittee  of  the  party  committee 
generally  conducts  the  actual  work  of  the  campaign.  Very 
frequently,  however,  all  threads  are  held  by  the  chairman  of 
the  party  committee,  who  controls  with  almost  despotic  power 
the  activities  of  the  committees,  the  subcommittees,  and  the 
candidates.  Acting  with  the  party  committee  and,  in  some 
cases,  including  some  of  its  members  are  various  subcommit- 
tees, bureaus,  and  councils.  These  may  deal  with  publicity, 
with  speakers,  with  the  vote  of  the  women,  with  the  vote  of 
particular  nationalities,  or  they  may  be  organized  to  emphasize 
some  particular  issue  of  the  campaign.  It  should  be  remem- 
bered, nevertheless,  that  all  these  are  strictly  subordinate 
and  have  no  independent  resources  aside  from  those  of  the 
party  committee. 

In  a  perfectly  running  and  well-organized  campaign  the 
candidates  and  party  committees  work  in  harmony,  but  such 
may  not  always  be  the  case.  This  is  true  particularly  either 
where  the  party  committees  are  chosen  at  the  direct  primaries, 
which  may  or  may  not  nominate  candidates  in  harmony  with 
the  committee,  or  where  the  candidates  are  nominated  by  one 
method  and  the  committees  chosen  by  another.    But  even  if 


THE  CAMPAIGN  79 

there  is  not  complete  harmony  of  purpose  a  pretense  is  main- 
tained. In  case  of  actual  conflict  between  the  candidates  and 
the  committee  the  committee  generally  wins.  This  is  because 
of  the  expense  involved  in  the  campaign.  Few  candidates  are 
able  to  finance,  independently  of  the  party,  their  own  cam- 
paigns. Party  resources  are  greater  than  those  of  individuals. 
A  second  and  more  compelling  reason  lies  in  the  fact  that  the 
committee  generally  possesses  the  confidence  of  the  active 
workers  within  the  party.  Candidates  at  best  are  temporary, 
while  the  organization  of  the  party  is  permanent. 

The  most  practical  method  of  influencing  the  voter  is  by  campaign 
personal  canvass  and  solicitation.^  This  is  very  effective  in  ^j,  personal 
rural  communities  and  may  be  carried  on  by  the  candidate  solicitation 
himself  or  by  the  members  of  the  party  committee.  In  larger 
communities,  however,  such  solicitation  and  canvass  requires 
an  effective  organization  and  the  expenditure  of  considerable 
sums.  In  the  Republican  party  in  Pennsylvania  it  is  stated 
that  during  a  heated  campaign  every  tenth  or  even  every  fifth 
man  becomes  a  party  watcher  for  the  purpose  of  learning  the 
political  opinions  and  sentiments  of  the  voters  assigned  to  him. 
He  reports  to  superior  officers,  who,  in  turn,  bring  pressure  to 
bear  upon  a  disaffected  party  member.-  It  is  doubtful  if  such  a 
thoroughgoing  organization  exists  in  any  other  state,  for  in  few 
states  is  the  Republican  organization  as  efficient  as  in  Pennsyl- 
vania. In  general,  attempts  are  made  to  get  at  the  sentiments  or 
opinions  of  the  voters  and  to  bring  influence  to  bear  upon  them. 

Printed  appeals  run  all  the  way  from  post  cards  and  circu-  (2)  Printed 
lars  sent  to  the  voters,  through  newspaper  articles  and  adver-  ^^^^*  * 
tisements,  to  posters  on  billboards  and  appeals  made  by  the 
motion  pictures.  This  is  an  extremely  expensive  proceeding. 
It  has  been  estimated  that  it  costs  five  cents  to  send  out  a  post 
card  and  ten  cents  apiece  to  circularize  the  voters  by  means  of 
a  letter.  Advertising  in  magazines  and  newspapers  and  on 
billboards  and  telegraph  poles  is  more  and  more  resorted  to, 
but  is  becoming  increasingly  expensive. 

iSee,  especially,  P.  O.  Ray,  An  Introduction  to  Political  Parties  and 
Practical  Politics,  chap.  x. 

2Jesse  Macy,  Party  Organization   and  Machinery,  pp.   121-122. 


8o        STATE  AND  MUNICIPAL  GOVERNMENT 


(3)  The 

campaign 

textbook 


(4)  Public- 
ity pam- 
phlets 


(5)  Rallies 

and 

speakers 


Two  special  kinds  of  printed  appeals  must  be  noted.  The 
campaign  textbook,  which  is  designed  primarily  for  use  by 
speakers  and  active  party  workers,  contains  the  official  docu- 
ments of  the  party,  the  party  platform,  the  nominating 
speeches  and  exposition  of  the  party  services, — placing  the 
party  in  its  most  favorable  light, — biographies  of  the  candi- 
dates, and  some  of  their  more  striking  speeches.  Although 
this  textbook  is  designed  primarily  for  the  active  workers  in 
the  party,  it  is  sometimes  distributed  among  the  voters. 

Because  of  the  expense  of  instructing  the  voters  and  the 
recognition  that  the  voters  ought,  nevertheless,  to  be  enlight- 
ened, an  increasing  number  of  states  distribute  information 
at  public  expense.  The  first  state  to  initiate  this  scheme  was 
Oregon.  In  the  Oregon  pamphlet  each  candidate  must  pay  a 
small  fee  for  the  use  of  at  least  one  page  and  is  allowed  to 
buy  more  space  at  cost.  Each  party  also  may  buy  pages.  In 
the  publicity  pamphlet  are  printed  also  the  measures  which 
are  to  be  voted  on  directly  by  the  people,  and  include  those 
proposed  by  the  popular  initiative  and  those  put  before  the 
voters  by  the  referendum.  Interested  groups  may  also  pur- 
chase space  in  the  pamphlet  and  present  arguments  for  and 
against  these  measures.  This  idea  of  a  publicity  pamphlet  of 
some  sort  is  spreading  throughout  the  states.^  Other  states 
give  information  at  public  expense  on  the  measures  submitted 
to  the  voters  for  decision.  This  generally  involves  sending  to 
each  voter  a  reprint  of  the  proposed  measures.-' 

In  all  campaigns  meetings  known  as  rallies  are  held.  These 
vary  from  small  gatherings  held  in  the  wards  and  precincts, 
addressed  by  local  candidates  or  prominent  citizens,  up  to  the 
large  political  meetings  where  the  speakers  are  the  principal 
candidates  and  persons  of  state-wide  or  national  reputation. 
Not  infrequently  the  national  party  is  vitally  interested  in 
carrying  a  state  election,  and  may  put  at  the  disposal  of  the 
state  committee  cabinet  officers  or  influential  members  of  Con- 
gress.   But  whether  these  rallies  are  small  or  large  they  all 

lAmonR  the  states  employing  this  method  arc  Indiana,  North  Dakota, 
South  Dakota,  Wyoming.         -Massachusetts  is  an  example  of  this  type. 


THE  CAMPAIGN  8i 

have  this  in  common — they  attract  mainly  the  members  of 
the  party,  and  the  appeal  is  made  to  confirm  party  loyalty  and 
to  arouse  enthusiasm  rather  than  to  convert  the  independent 
voters  or  those  of  other  parties.  Generally  the  rallies  are 
of  a  cut-and-dried  sort,  and  the  enthusiasm  engendered  is 
often  palpably  made  to  order.  Rarely  is  the  speaker  ques- 
tioned or,  to  use  the  English  phrase,  ''heckled";  in  fact, 
American  audiences  generally  resent  questioning,  and  the 
police  are  frequently  called  to  put  out  such  a  disturber.  In- 
formal political  meetings  are  sometimes  held  on  street  corners 
and  in  parks,  where  itinerant  orators,  known  from  the  plat- 
form they  mount  as  "soap  box"  orators,  address  whatever 
audience  they  may  gather.  In  recent  years  very  effective  in- 
formal rallies  have  been  held  at  the  noon  hour  around  gates 
of  manufacturing  establishments.  Here  the  audience  is  gen- 
erally not  confined  to  the  members  of  any  one  party,  and  the 
speaker  has  the  opportunity  not  merely  to  arouse  enthusiasm 
but  to  convert  voters  to  his  point  of  view. 

In  former  days  the  torchlight  procession  made  a  most  pic-  (e)  other 
turesque  method  of  appeal,  but  this  has  generally  been  dis-  methods 
carded  for  the  daylight  procession,  where  the  marchers  may 
be  seen  and  their  personal  influence  made  even  more  effective. 
It  is  to  be  doubted,  however,  whether  even  this  ever  turns 
many  votes.  Political  clubs,  ranging  from  the  permanent  asso- 
ciations of  a  large  city  down  through  the  ward  or  precinct 
club  to  the  temporary  organization  arranged  for  the  campaign, 
have  considerable  influence.  They  furnish  a  common  meeting 
place  for  members  of  the  party,  where  enthusiasm  may  be 
engendered  and  orders  and  directions  given.  Before  the  advent 
of  prohibition  many  of  these  clubs  had  their  headquarters  over 
or  near  a  saloon,  and  the  saloon-keeper  was  not  infrequently 
the  most  influential  man  in  the  club,  keeping  in  close  touch 
with  some  superior  officer  of  the  party. 

Political  campaigns  are  expensive.    Even  the  most  innocent  use  of 
and  high-minded  campaign  requires  a  large  sum  to  finance  its  campaigns: 
operations.  Among  legitimate  expenses  of  the  campaign  may  be  ^'^  oncers 
included  rent  for  headquarters — not  simply  the  headquarters 


82         STATE  AND  MUNICIPAL  GOVERNMENT 


(2)  Clerical 
hire  and 
postage 


(3)  Personal 
and  travel- 
ing expend- 
itures 


(4)  Ex- 
penses of 
workers 

^5)  Expend- 
itures for 
printed  ma- 
terial and 
advertise- 
ments 


of  the  State  committee,  but  of  the  party  officers  in  the  dif- 
ferent cities  throughout  the  state.  An  immense  mass  of  corre- 
spondence and  bookkeeping  is  necessary  now  to  conduct  a 
campaign.  In  some  cases,  for  small  communities,  this  is  per- 
formed by  volunteer  workers,  but  in  general  the  burden  is  so 
great  that  the  committees  employ  a  large  office  force  of  stenog- 
raphers, secretaries,  and  clerks.  With  the  increase  of  state 
supervision  over  the  party  finances,  the  party  committees  are 
obliged  to  keep  careful  and  accurate  books,  which  necessitates 
the  employment  of  expert  bookkeepers  and  auditors.  The 
amount  of  mail  matter  which  is  distributed  in  a  political  cam- 
paign is  enormous.  This  is  true  even  in  those  states  where 
publicity  pamphlets  are  issued  under  state  authority.  Special 
appeals  to  certain  classes  of  voters  are  sometimes  sent  out  at 
the  cost  of  from  two  to  ten  cents  a  letter.  This,  in  New  York 
State,  would  involve  the  expenditure  of  from  $35,000  to 
$175,000  for  each  communication.^  In  addition  there  is  a  vast 
amount  spent  on  telephones  and  telegrams. 

Sometimes  the  members  of  the  party  committee  give  their 
services  and  pay  their  own  expenses ;  more  generally,  however, 
the  traveling  and  hotel  expenses  of  the  committee  are  paid 
from  the  party  funds.  This  is  practically  always  true  of 
the  expenditures  of  the  candidates  for  the  principal  state 
offices.  But  in  this  case  the  candidates  themselves  often 
contribute  to  the  party  fund. 

The  workers  vary  all  the  way  from  speakers,  who  are  some- 
times paid  $100  or  even  as  much  as  $1000  a  night,  down 
through  the  fees  paid  to  lawyers,  writers,  editors,  or  adver- 
tising agents  for  preparing  printed  material,  to  the  sum  paid 
to  the  canvassers  and  distributors  of  party  literature.  The 
expenditure  for  printed  material,  including  the  cost  of  printed 
circulars,  handbills,  posters,  the  campaign  textbook,  and  space 
bought  in  newspapers  and  magazines,  involves  an  enormous 
amount  of  money.  A  single-page  advertisement  in  one  issue 
of  a  paper  may  cost  $5000,  but  there  is  little  objection  to 
this  method  provided  it  is  open  and  aboveboard.  To  insure 
this  both   federal  and  state  laws  have  been  passed  directing 

^A.  N.  Holcombc,  State  Government  in  the  United  States,  pp.  218,219, 


THE  CAMPAIGN  83 

that  all  paid  political  advertisements  shall  be  so  indicated  and 
signed  by  a  party  committee.  A  more  insidious  method  is  for 
the  party,  through  its  committee  or  one  of  its  members,  to 
purchase  control  of  a  newspaper  and  to  bend  the  editorial 
policy  to  its  purpose.  No  objection  can  be  taken  to  this  pro- 
vided it  is  known,  and  to  this  end  the  federal  laws  require  the 
periodic  publication  of  the  names  of  the  stockholders  of  every 
publication  using  the  mails. 

Included  in  the  group  of  miscellaneous  expenditures  is  a  (6)  Miscei- 
variety  of  disbursements  hard  to  classify — for  bands  and  but-  penditures 
tons,  for  halls  and  bunting,  for  flags,  banners,  red  fire,  and  the 
like.  To  few  of  these  can  anyone  validly  object.  The  danger 
lies  in  the  amount  and  variety  of  the  expenditures — to  hire 
a  band  or  to  give  the  contract  for  the  manufacture  of  the 
campaign  button  is  perfectly  proper,  yet  both  of  these  proper 
acts  may  be  used  to  obtain  votes  illegitimately. 

Illegitimate  campaign  expenses  include  the  expenditure  of  illegitimate 
money  both  for  things  which  are  morally  wrong  and  for  things  expenses 
which  are  forbidden  by  law.    Bribery,  of  course,  falls  in  the 
first  category,  while  payment  for  transportation  to  the  polls 
is  an  example  of  the  second  class.     These  will  be  more  fully 
discussed   under  the  regulation  of  state  campaign  expenses. 

The  most  obvious  and  least  objectionable  source  of  supply-  sources  of 
ing  the  party  funds  is  the  contributions  of  the  members  of  the  ^^^  y  "°  s 
party .^  No  fault  can  be  found  with  contributions  from  individ- 
"uals^Hade  for  the  purpose  of  meeting  the  legitimate  expense 
of  a  campaign  in  order  that  the  party  may  realize  its  ideals. 
Criticism,  however,  does  justly  arise  when  the  contributions 
are  extorted  under  pressure.  The  appeal  may  be  made  either 
to  the  hope  of  reward  or  to  the  fear  of  punishment.  Before 
the  widespread  introduction  of  civil-service  reform,  party 
assessments  were  not  infrequently  made  upon  officeholders. 
The  demand  was  bluntly  put:  pay  the  assessment  in  order 
that  you  may  retain  your  office,  for  if  the  party  is  defeated, 
you  lose  your  job ;  and  if  you  don't  pay,  the  party  official 
will  discharge  you.     Not  only  were  assessments  made   upon 

iSee    C.    A.    Beard,    American    Government    and    Politics    (3d    ed.), 
pp.  667-672. 


84        STATE  AND  MUNICIPAL  GOVERNMENT 

officeholders  but  upon  candidates  for  election,  and  it  is  on 
record  that  at  one  time  the  candidates  for  judicial  office  in 
New  York  were  expected  to  pay  to  the  party  treasury  between 
$10,000  and  $25,000.  This  comes  dangerously  close  to  pur- 
chase of  office.  Theoretically,  it  may  be  difficult  to  distinguish 
between  the  free-will  contributions  of  interested  members  of 
the  party  and  the  assessments  levied  upon  officeholders,  actual 
and  prospective ;  practically,  however,  it  is  easy.  The  former 
is  allowable,  the  latter  reprehensible.  A  question  sometimes 
arises  whether  a  party  should  accept  an  unlimited  amount 
from  any  one  contributor;  abstractly,  the  contribution  of  an 
individual  should  be  limited  only  by  his  means  and  his  in- 
terests ;  but,  actually,  if  too  large  contributions  are  accepted, 
the  donors  acquire  an  undue  influence  in  the  direction  of  the 
party  affairs.  Thus  party  managers  not  infrequently  pro- 
claim that  contributions  will  be  limited  to  a  comparatively 
small  amount, 
contribu-  Formerly    contributions    from    corporations    were    eagerly 

corporations  sought  by  all  parties  and  were  lavishly  bestowed,  often  given 
to  opposing  parties  by  the  same  corporations.  This  source  of 
revenue  was  shut  off  by  law  as  the  result  of  the  disclosures 
following  the  campaign  of  1904,  where  huge  contributions 
were  made  by  certain  corporations,  particularly  insurance  com- 
panies. Three  objections  to  contributions  from  corporations 
are  obvious :  In  the  first  place,  the  money  in  the  treasury  of  a 
corporation  belongs  to  the  stockholders,  whose  political  affilia- 
tions are  probabl}'  varied  and  not  unanimously  in  agreement 
with  the  party  which  receives  the  contribution.  Second,  by 
giving  to  both  parties  the  corporation  assures  itself  of  influence 
and  protection  whichever  party  is  successful,  and  thus  tends  to 
break  down  the  bipartisan  system.  Third,  the  size  of  corporate 
contributions  was  frequently  so  great  as  to  give  them  undue 
influence  in  determining  the  affairs  of  the  party,  and  hence  the 
rank  and  file  of  all  parties  realized  that  the  political  system 
was  gradually  being  transferred  from  the  control  of  the  people 
to  that  of  a  few  wealthy  individuals. 

The  most  abominable  source  of  party  revenue,  fortunately 
not  general   throughout  the  United  States,  is   found  in  the 


THE  CAMPAIGN  85 

protection  of  crime  and  vice.  The  disclosures  of  the  Lexow 
Committee  showed  to  what  an  extent  this  was  prevalent  in  New 
York  City  in  the  last  decade  of  the  nineteenth  century.  Not 
merely  were  regular  tariffs  established  for  saloons,  gambling- 
houses,  and  houses  of  ill-fame,  but  pickpockets  actually  paid 
for  the  privilege  of  operating  unmolested  in  certain  localities. 

Not  until  1890  was  any  attempt  made  to  regulate  the  use  of  Regulation 
money  in  elections.^    Of  course  bribery  and  certain  other  of-  moneyTn" 
fenses  were  illegal  by  general  statute  law,  but  there  were  no  campaigns 
special  laws  for  limiting  the  sources  from  which  money  might 
be  collected  or  the  amount  that  might  be  spent,  and  there 
were  no  requirements  for  publicity.     All  these  matters  were 
regulated  in  England  by  the  Corrupt   and   Illegal   Practices 
Prevention  Act   of    1883,  and  since   that   date   British   elec- 
tions   have    been    singularly    free    from    corruption    and    the 
objectionable    features   which    have    too    often    characterized 
American  elections. 

The  problem  in  Great  Britain,  however,  was  far  more  simple  Differences 
than  that  in  the  United  States.  In  Great  Britain  there  is  gen-  Greir" 
erally  but  a  single  office  to  be  filled  at  each  election  in  each 
district.  The  candidate  for  Parliament  is  usually  the  sole  rep-  sutes 
resentative  of  his  party  in  his  district.  On  the  other  hand,  in 
America  there  are  both  numerous  candidates  put  forward  by 
each  party  for  the  offices  which  the  party  desires  to  capture  and 
a  multitude  of  offices  to  be  filled.  No  one  candidate  is  the  sole 
representative  of  the  party.  All  the  candidates  from  the  gover- 
nor down  are  aided  by  the  same  party  organization.  It  may  be 
true  that  a  voter  may  be  bribed  or  corruptly  influenced  to  vote 
for  a  specific  candidate,  but  in  so  doing  he  generally  votes  the 
entire  party  ticket.  It  is  almost  impossible,  therefore,  to  trace 
corruption  back  to  a  single  candidate.  To  punish  a  state 
treasurer  for  the  corruption  practiced  by  the  party  in  behalf 
of  the  election  of  its  candidate  for  governor  would  be  unfair, 
yet  the  success  of  the  ticket  headed  by  a  candidate  for  gov- 
ernor guilty  of  corruption  may  make  possible  the  election  of 
the  state  treasurer. 

ipor   an   excellent  treatment   of   this   subject  see   A.   N.   Holcombe, 
State  Government  in  the  United  States,  pp.  221-239. 


Britain  and 
the  United 


86 


STATE  AND  MUNICIPAL  GOVERNMENT 


Few  con- 
tests for 
nomination 
in  Great 
Britain 


In  Great 
Britain  the 
candidate  is 
expected  to 
finance  his 
own  cam- 
paign 


American 
Corrupt 
'Practices 
Acts 


A  second  difference  between  the  United  States  and  Great 
Britain  lies  in  the  fact  that  in  Great  Britain  there  is  frequently, 
if  not  generally,  little  contest  for  nomination.  In  the  United 
States  nominations  are  hotly  contested,  and  in  some  districts 
the  nomination  is  equivalent  to  an  election ;  hence  the  problem 
becomes  twice  as  complicated  as  in  Great  Britain.  Thus,  even 
if  it  were  possible  satisfactorily  to  regulate  corrupt  practices  in 
American  elections,  the  campaigns  for  nomination  would  still 
be  fertile  fields  for  corruption.  Moreover,  in  Great  Britain  the 
agent  of  the  candidate  is  his  personal  choice,  and  the  candi- 
date may  be  held  personally  responsible  for  the  acts  of  his 
agent.  In  the  United  States,  however,  the  party  organizations 
frequently  have  the  same  authority  as  the  candidates,  both 
being  the  choice  of  the  electorates  in  the  direct  primaries. 
To  hold  the  candidate  personally  responsible  for  the  action 
of  a  party  committee  of  which  he  may  not  approve  and 
to  the  choice  of  which  he  may  have  objected  would  be 
manifestly  unfair. 

Finally,  in  Great  Britain  the  candidate  is  expected  to 
finance  a  large  part  of  his  campaign.  It  is  true  that  if  a  very 
desirable  candidate  is  unable  to  do  so,  he  may  receive  a  grant 
from  the  general  funds  of  the  party,  but  there  is  little  attempt 
made  to  finance  the  campaigns  from  the  local  constituency. 
In  the  United  States,  however,  each  constituency  is  expected 
to  finance  in  part,  if  not  entirely,  the  expense  of  the  cam- 
paign, and  the  candidate,  while  expected  to  make  some  contri- 
bution, is  not  supposed  to  meet  a  large  part  of  the  expenses. 

The  attempt  to  control  election  expenses  was  begun  by  New 
York  in  1890  and  followed  by  Massachusetts  in  1892,  but 
these  early  laws  were  entirely  inadequate,  although  the  New 
York  law  required  the  candidate  to  file  an  account  of  his 
expenses.^  In  1893  Missouri  limited  the  amount  that  might 
be  spent  by  candidates  and  committees,  and  in  1903  the  prin- 
ciple of  publicity  of  expenditures  at  the  primaries  was  adopted 
by  some  of  the  Southern  states.    None  of  this  legislation  was 


'Sec  A.  N.  Ilolcombe,  State  Government  in  the  United  States, 
pp.  221-229,  Sid  C.  A.  Beard,  American  Government  and  Politics, 
pp.  701-703;  also  Senate  Document  No.  86,  59th  Cong.,  1st  sess.,  pp.  5-10. 


THE  CAMPAIGN  87 

very  effective,  largely  because  it  was  not  well  supported  by 
public  opinion.  After  the  insurance  investigations  of  1904, 
however,  a  change  of  opinion  took  place.  The  rank  and  file 
of  the  party  were  shocked  at  the  thought  that  their  political 
institutions  were  coming  under  the  control  of  an  oligarchy  of 
wealth.  The  large  corporations  themselves  discovered  that 
they  were  the  dupes  of  the  system  and  that  contributions  in 
many  cases  were  a  euphonious  term  for  blackmail. 

Effective  regulation  began  in  1907,  when  Congress  pro- The  reguia- 
hibited  all  corporations  from  contributing  to  the  campaign  expenses 
funds  of  federal  officers  and  all  national  banks  and  corpora- 
tions engaged  in  interstate  commerce  from  contributing  to 
any  campaign  fund.  In  191  o  the  federal  law  required  sworn 
statements  of  contributions  and  expenses  at  the  close  of  the 
campaign  from  national  and  congressional  committees  and  all 
other  committees  spending  money  in  two  or  more  states  for 
the  purpose  of  influencing  federal  elections.  This  publicity 
was  made  continuous,  and  in  191 1  the  amount  which  candi- 
dates might  spend  in  both  the  primary  and  the  election  to 
Congress  was  limited  to  S5000  for  candidates  for  the  House 
and  to  $10,000  for  candidates  for  the  Senate.  The  states 
followed  suit,  and  now  nearly  one  half  of  them  prohibit 
campaign  contributions  from  corporations  and  about  three 
fourths  provide  for  filing  the  returns  of  contributions  and 
expenditures. 

The  many  methods  which  have  been  devised  by  the  states  state  regu- 
to  meet  this  evil  may  be  grouped  under  several  heads.    Some  campaign 
of   the   states   limit    the   amount   which    any    candidate    may  ^^^^^g^g^ric- 
spend  for  election.     Perhaps  the  best  examples  are  the  laws  tionson 

.      candidates 

passed  by  Oregon  in  1908,  California  in  1909,  Wisconsm 
in  191 1,  and  Massachusetts  in  1914.  A  maximum  amount  is 
fixed  in  these  and  similar  laws.  In  the  Oregon  law  this  is  a 
percentage  of  the  salary  of  the  office  sought,  which,  in  the 
case  of  the  governor,  amounts  to  about  $1250,  and  of  course 
a  much  smaller  sum  for  minor  candidates,  who  receive  far  less 
aid  in  their  campaigns  from  the  newspapers  than  does  the 
governor.  The  California  law  permits  the  expenditure  of  S250 
for  the  first  5000  votes  in  a  district,  $2   for  each  additional 


8S 


STATE  AND  MUNICIPAL  GOVERNMENT 


(2)  Control 
of  political 
committees 


(3)  Source 
of  contri- 
butions 


100  votes  up  to  25,000,  $1  for  each  100  up  to  50,000,  and 
50  cents  for  each  100  votes  thereafter.  This  would  allow  the 
candidate  to  expend  about  $5000.  Both  the  Oregon  and 
the  California  laws,  as  well  as  others,  have  apparently  placed 
the  maximum  amount  altogether  too  low.  Thus,  in  Oregon  the 
candidate  for  governor  could  spend  about  half  a  cent  for  each 
voter,  and  the  amount  fixed  in  California  would  allow  the 
governor  to  send  a  post  card  to  about  half  of  the  male  voters 
of  the  state.^  It  must  be  remembered,  however,  in  comparing 
these  figures  with  the  average  expense  of  a  dollar  a  vote  al- 
lowed in  British  elections,  that  in  the  United  States  the  gover- 
nor is  only  one  of  many  candidates  upon  the  ticket,  which  is 
elected  as  the  joint  result  of  the  combined  efforts  of  many 
committees  and  contributions  to  numerous  campaigns. 

The  control  of  political  committees  was  first  begun  in  the 
Massachusetts  Act  of  1892,  which  defined  a  political  com- 
mittee as  three  or  more  persons  acting  to  promote  the  success 
or  defeat  of  a  party  principle  or  candidate.  Every  political 
committee  was  obliged  to  have  a  treasurer,  to  whom  all  con- 
tributions were  made  and  by  whom  the  money  was  expended. 
At  the  close  of  the  campaign  the  treasurer,  provided  the  total 
expenditures  were  over  $20,  was  required  to  tile  a  return  with 
the  town  or  city  clerk.  In  this  act  no  limitation  was  placed 
upon  the  amount  which  might  be  contributed  to  the  commit- 
tee nor  upon  the  sources  from  which  the  contributions  came. 
The  principles  of  this  act  have  been  adopted  by  other  states, 
and  in  general,  wherever  legislation  regulating  the  use  of 
money  is  found,  the  political  committees  are  required  to  have 
a  treasurer  who  is  responsible  not  merely  for  the  expenditures 
but  for  the  character  and  source  of  the  contribution.  He  is 
obliged  to  file  periodic  statements  for  the  federal  elections  and 
in  some  states  for  state  elections.  In  all  cases  he  must  file  final 
accounts  after  the  election  has  taken  place. 

After  the  federal  act  of  1907,  or  in  some  instances  before 
it,  many  states  adopted  laws  prohibiting  contributions  from 
corporations.- 


1  See  A.  N.  Holcombe,  State  Government  in  the  United  States,  p.  236. 
-See  pages  84,  87. 


THE  CAMPAIGN  89 

The  New  York  statute  of  1906^  attempts  to  make  a  rather  (4)  Defini- 
precise  Hst  of  objects  for  which  money  may  be  used  in  cam-  campaign 
paigns.    Expenditures  are  allowed  for  the  following  purposes:  ^^p^^^^^ 
rent  of  halls  and  expenses  connected  with  public  meetings ; 
preparation  and  publication  of  various  ''literary  materials"; 
compensation  for  agents   in  order   to   prepare   and   supervise 
articles  and  advertisements  for  the  press ;  payment  of  news- 
papers for  publishing  materials ;  rent  of  offices  and  clubrooms ; 
compensation  of  clerks,  agents,  and  attorneys  managing  the 
''reasonable   business   of  elections";    preparation  of   lists   of 
voters  ;  personal  expenses  of  candidates  and  traveling  expenses ; 
compensation  of  workers  at  the  polls ;  and  the  hire  of  carriages. 

Professional  politicians  claim  that  the  chief  consequences  of  Effect  of 
these  laws  have  been  to  encourage  perjury  and  that  in  many  practices 
instances  the  laws  have  been  openly  and  shamelessly  evaded  ^^^ 
and  violated.    Nevertheless  some  good  effects  have  resulted. 
The  amount  spent   in   elections  has   undoubtedly   decreased. 
Contributions  from  corporations  have  almost  entirely  ceased, 
although  the  testimony  on  this  point  is  by  no  means  conclusive. 
The  more  objectionable  objects  of  expenditures  have  been  re- 
moved, and  more  reliance  has  been  placed  upon  the  unpaid 
services  of  individuals.    Nevertheless  much  remains  to  be  done 
before  our  system  will  be  as  free  from  corruption  as  is  the 
English  system. 

Many  of  the  topics  which  have  been  discussed  in  the  pre-  Election 
vious  pages  are  included  in  the  general  election  laws  of  the 
different  states.  These  laws,  with  the  various  amendments, 
are  extremely  long  and  complicated,  the  19 19  edition  of  the 
New  York  law  making  a  pamphlet  of  over  three  hundred 
pages,  while  the  New  Jersey  and  Massachusetts  laws  are  not 
much  shorter.  Aside  from  the  topics  already  discussed,  and  the 
more  technical  provisions,  certain  general  principles  and  com- 
mon features  are  found  in  the  election  laws  of  almost  every  state. 

Certain  officers  are  generally  placed  in  charge  of  the  entire  (i)  Election 
electoral  machinery — in  most  states  the  secretary  of  state  to- 
gether with  the  county  clerks  or  city  or  town  clerks,  although 

iChap.  503,   Sect.   i.    See   C.  A.  Beard,  American  Government  and 
Politics,  pp.  702-703. 


90        STATE  AND  MUNICIPAL  GOVERNMENT 

some  states  appoint  special  officers  to  perform  these  functions. 
In  general  the  officers  are  charged  with  issuing  the  blanks  for 
nomination,  the  preparation  of  the  ballots  and  their  distribu- 
tion to  the  local  election  officers,  and  the  return  of  the  official 
counts  of  the  ballots.  The  exercise  of  these  duties  is  a  strictly 
nonpartisan  function,  and  in  general  this  theory  is  carried  out 
in  practice.  There  are  few  cases  on  record  where  any  of  these 
election  officials  have  refused  to  comply  with  the  regulations 
of  the  law  in  the  preparation  and  distribution  of  the  ballots. 
The  same  high  standard  has  not  always  been  maintained  in 
the  care  of  the  ballots  after  the  election. 
(2)  Local  Practically  all  states  provide  for  bipartisan  boards  of  poll 

officers  clerks  or  ballot  clerks  in  each  polling  place.  These  officers  are 
variously  chosen  and  are  also  supposed  to  act  in  an  entirely 
nonpartisan  manner  in  delivering  the  ballot  to  the  would-be 
voter,  in  receiving  the  same  when  duly  marked,  and  in  count- 
ing it  after  the  election.  The  high  standards  which  have 
characterized  the  more  important  state  officials  are  not  always 
met  with  in  the  local  officials.  All  too  frequently  accusations 
are  made  and  charges  proved  against  these  local  officials,  who 
may  refuse  to  allow  an  elector  to  vote,  or  miscount,  sometimes 
intentionally,  the  results  of  the  election,  or  destroy  or  lose  the 
ballots  committed  to  their  care. 
(3)watchers  Most  States  allow  duly  authorized  representatives  of  all 
parties  to  act  as  watchers.  These  watchers  are  to  see  that 
fair  play  takes  place  and  that  voters  are  allowed  to  cast  their 
votes  according  to  their  legal  rights.  It  is  their  duty  also  to 
report  violations  to  the  proper  authorities  and,  above  all,  to 
see  that  a  fair  count  is  made  by  the  polling  officials. 
^4)  Official  'I'he  results  of  the  election  must  be  entered  upon  standard 
returns""^  t^^^y  shects  furnished  by  the  state  and  duly  certified  by  the 
proper  officials  at  each  polling  place.  These,  together  with  the 
counted  ballots,  which,  according  to  most  laws,  must  be  sealed, 
are  delivered  to  some  higher  authority  for  safe-keeping  against 
the  possibility  of  a  recount. 
(5)  The  Special  provisions  are  made  for  preserving  peace  and  order 

the  pons"*     at  the  polling  places.    In  some  states  this  is  confided  to  the 
ordinary  police  force;  in  others  to  special  constables.    In  New 


THE  CAMPAIGN  91 

York  State  a  superintendent  of  elections  is  appointed,  who, 
with  his  deputies,  investigates  all  questions  of  registration, 
may  arrest  without  warrant  persons  who  violate  the  election 
law,  executes  warrants  of  arrest,  and  inspects  books  and 
records  dealing  with  registration  and  election. 

No  person  is  allowed  to  vote  unless  his  name  appears  upon  (6)  Regis- 
the  register.  The  system  and  the  merits  of  personal  regis- 
tration have  already  been  fully  discussed.^  On  election  day 
the  polling  officers  or,  in  New  York  State,  the  deputies  of  the 
superintendent  of  elections  see  to  it  that  the  provisions  of  the 
law  are  obeyed,  that  no  one  votes  unless  properly  registered, 
and  that  every  person  whose  name  appears  upon  the  register 
is  given  the  opportunity  to  vote. 

Most  states  now  require  that  each  voter  shall  receive  a  (7)  secrecy 
ballot  and  mark  it  in  secret,  folding  it  so  that  the  election 
officials  and  watchers  are  unable  to  determine  how  he  has 
voted.  The  object  of  these  provisions  is  to  secure  freedom 
of  choice  and  to  prevent  intimidation  as  well  as  to  limit  the 
possibility  of  bribery.  Purchase  of  votes  may  take  place,  but 
the  buyer  has  little  or  no  opportunity  to  determine  whether 
the  venal  voter  has  fulfilled  his  part  of  the  bargain. 

Under  the  head  of  miscellaneous  provisions  are  classified  the  (s)  Miscei- 

,  .,  .  .  .        r  •         f  1  laneous 

provisions  prohibiting  parties  from  paying  for  the  transporta-  provisions 
tion  of  voters  to  the  polls ;  forbidding  treating,  betting,  solici- 
tation of  votes  within  a  certain  distance  of  the  polls;  and, 
before  1918,  the  requirement  that  all  saloons  should  be  closed. 
In  general  the  election  code  is  designed  to  insure  that  the 
electorate  unhampered  and  unintimidated  may  freely  express 
its  opinion.  Although  this  ideal  is  seldom  attained,  a  vast 
improvement  in  orderliness  and  decency  has  taken  place  during 
the  last  thirty  years. 

The  Ballot 

The  ballot  is  the  sole  means  by  which  the  electorate  can  The 
formally  express  its  will.    Public  opinion  may  be  formed  by  oTtSruot 
debates,  discussions,  and  newspaper  articles.    This  public  opin- 
ion may  be  brought  to  bear  upon  the  officials  of  the  state.    But 

iSee  pages  61-62. 


92 


STATE  AND  MUNICIPAL  GOVERNMENT 


Early 

regulations 
concerning 
the  ballot 


Ballot 
reform 


the  ultimate  authority  of  the  electorate  is  exercised  only- 
through  casting  the  ballot.  While  the  laws  regulating  the  con- 
duct of  elections,  the  policing  of  the  polls,  and  the  prevention 
of  corruption  are  important  and  necessary  and  often  greatly 
emphasized,  the  regulations  concerning  the  form  and  character 
of  the  ballot  are  of  equal  importance,  although  their  necessity 
was  not  so  early  appreciated.  In  the  course  of  the  past  thirty 
years  following  the  legislation  regarding  corrupt  practices,  at- 
tention has  been  more  and  more  centered  upon  the  perfection 
of  the  ballot.^ 

Thus,  in  the  middle  of  the  nineteenth  century  the  legislation 
concerning  the  ballot  was  chiefly  characterized  by  its  inade- 
quacy. The  preparation  of  the  ballot  was  left  entirely  to 
individual  initiative  as  expressed  either  by  the  party  or  by  the 
candidate.  There  were  some  restrictions,  it  is  true,  to  the 
effect  that  all  ballots  should  be  on  paper  of  the  same  color, 
and  some  limitations  as  to  its  size,  but  in  general  state  author- 
ity did  not  interfere  with  either  the  preparation  or  the  dis- 
tribution of  the  ballot.  On  the  voter's  arrival  at  the  polls 
ballots  of  all  sorts  were  forced  upon  him,  and  he  reached  the 
ballot  box  frequently  bearing  not  one  ballot  but  the  tickets 
of  several  parties  or  combinations  of  candidates.  There,  be- 
fore the  election  officials,  he  made  his  selection  in  public 
either  on  the  ballots  he  had  received  at  the  polls  or  on  a  pre- 
viously prepared  ballot  given  him  by  some  interested  person. 
The  voter  then  declared  his  name  and  residence;  the  polling 
officer  repeated  these  in  a  loud  voice  for  the  benefit  of  the  poll- 
ing clerks  and  watchers  and,  if  no  objections  were  made,  re- 
ceived the  ballot  from  the  voter  and  deposited  it  in  the  box. 
Secrecy  was  absent,  opportunity  for  influence,  intimidation, 
and  bribery  was  given,  and  too  often  there  was  a  possibility 
that  more  than  one  ballot  had  been  cast. 

Beginning  in  1888  Massachusetts  introduced  what  in  this 
country  is  known  as  the  Australian  ballot.  The  chief  features  of 
the  Australian  ballot  as  used  in  Australia  were  that  it  was  pre- 
pared by  state  authority  and  that  the  names  of  the  candidates 


'  P.  O.  Ray,  An  Introduction  to  Political  Parties  and  Practical  Politics, 
pp.  322-35Q,  prints  facsimiles  of  various  types  of  ballots. 


THE  CAINIPAIGN  93 

were  printed  upon  the  ballot  in  alphabetical  order  without 
party  designation.  Since  in  Australia  there  was  generally  but 
one  office  to  be  filled  at  each  election,  the  number  of  names 
on  the  ballot  was  small  and  the  choice  of  the  voter  made  easy. 
The  Australian  ballot  was  never  introduced  in  the  United 
States  in  its  entirety. 

The  Massachusetts  law  of  1888  provided  that  the  candidates  The  wassa- 
should  be  grouped  alphabetically  under  each  office,  each  can-  type 
didate  bearing  a  party  designation.  Like  the  Australian  ballot, 
however,  the  Massachusetts  law  provided  for  the  printing  of 
the  ballot  by  state  authorities  and  designated  the  political  par- 
ties which  should  be  allowed  the  use  of  the  party  name.^  The 
ballots  were  sent  by  the  state  authorities  to  the  local  authori- 
ties, who  were  responsible  for  them.  On  election  day  they  were 
given  to  the  polling  officials,  who  delivered  to  each  voter  a 
single  ballot,  which  the  voter  marked  in  secret,  folded,  and 
deposited  in  the  ballot  box.  The  significant  feature  of  the 
Massachusetts  type  is  that  the  voter  must  mark  with  a  cross 
each  candidate  for  whom  he  wishes  to  vote. 

In  1889  Indiana  made  further  modifications  to  the  Aus- The  party- 
tralian  ballot.  The  candidates,  instead  of  being  grouped  by  *^°  "'"'^  ^^^ 
office,  were  arranged  in  party  columns  over  which  was  placed 
tome  party  symbol,  and  a  method  was  provided  by  which  the 
voter  by  a  mark  at  the  head  of  the  column  could  vote  for  all  the 
candidates  nominated  by  his  party.  In  order  to  vote  a  "split" 
ticket  the  voter  was  obliged  to  mark,  as  in  the  Massachusetts 
ballot,  the  name  of  each  candidate  he  wished  chosen.  This 
party-column  ballot  was  at  first  the  most  popular  type  and 
was  copied  by  the  majority  of  states  which  adopted  the 
Australian  ballot. 

There  are  certain  variations  to  both  types.  The  INIassachu-  variations 
setts  method  of  grouping  the  candidates  by  office  is  sometimes 
adopted  with  the  addition  of  a  circle  or  square  in  a  separate 
place,  by  which  the  voter  may  vote  with  a  single  mark  for 
the  entire  party  ticket.-  The  party-column  type  is  sometimes 
modified  by  the  removal  of  the  party  circle  and  the  require- 
ment that  the  voter  must  mark  the  name  of  each  candidate  he 
iSee  pages  46-47.  2  Pennsylvania. 


94        STATE  AND  MUNICIPAL  GOVERNMENT 


The  merits 
of  the  two 

systems : 


(i)  The 
Massachu- 
setts type 


wishes  elected.^  The  effect  of  these  variations  is  to  make  each 
type  more  like  the  other.  The  removal  of  the  circle  at  the  head 
of  the  party  column  requires  voters  to  mark  each  candidate, 
but  groups  the  candidates  according  to  parties.  This  removes 
the  handicap  upon  independent  voting  and  at  the  same  time 
makes  party  voting  more  easy.  The  addition  of  the  party 
circle  to  the  Massachusetts  kind  of  ballot  puts  a  premium  on 
party  voting,  but  enables  the  independent  voter  to  make  his 
selection  of  candidates  for  different  offices  more  easily  than 
in  the  Indiana  type. 

The  jNIassachusetts  method  practically  establishes  an  edu- 
cational qualification.  It  is  true  that  illiterates  may  receive 
aid ;  it  is  also  true  that  ignorant  voters  are  sometimes  in- 
structed as  to  the  location  of  the  names  of  the  candidates  for 
whom  they  desire  to  vote ;  but  with  all  these  aids  the  Massa- 
chusetts ballot  presents  considerable  difficulties.  One  great 
advantage  of  that  ballot  is  that  it  does  not  discourage  inde- 
pendent voting.  The  voter  who  votes  a  split  ticket  takes 
no  longer  to  mark  his  ballot  than  the  one  who  votes  for  all 
the  candidates  nominated  by  the  party.  It  thus  provides  for 
absolute  secrecy  and  independence  of  voting  and  requires 
considerable  intelligence.  It  was  hailed  as  the  ideal  form 
and  has  been  adopted  by  about  fifteen  states,  including  some 
(notably  New  York)  which  had  formerly  used  the  party- 
column  type. 

The  chief  merit  of  the  party-column  ballot  is  that  it  enables 
column  type  the  voter  to  cxpress  quickly  his  choice  for  the  party  candidates. 
It  is  not,  like  the  ^Massachusetts  type,  a  test  of  literacy.  In 
those  states  where  there  is  no  literacy  requirement  for  the 
suffrage  it  would  seem  unfair  to  add  one  in  the  make-up  of 
the  ballot.  The  chief  disadvantage  of  the  party-column  ballot 
is  that  it  puts  a  premium  upon  straight  party  voting  and  seri- 
ously handicaps  the  independent  voter.  Not  only  is  the  in- 
dependent voter's  task  made  difficult,  but  the  very  time  that  is 
required  for  him  to  mark  a  split  ticket  as  compared  with  voting 
a  straight  ticket  advertises  to  interested  observers  this  form  of 
party  irregularity. 

^  Iowa. 


(2)  The 
party 


THE  CAMPAIGN  95 

The  most  serious  objection  to  the  Massachusetts  ballot  is  Objections 
that  it  makes  it  more  difficult  for  the  majority  of  the  voters  to  Massachu- 
express  their  opinion.  In  most  states  the  majority  of  voters  ^"'^^  ^^^^ 
are  party  members  and  vote  the  straight  party  ticket  at  elec- 
tions. This  statement  though  subject  to  certain  obvious  and 
famous  exceptions  generally  holds  true.  It  would  seem  proper, 
therefore,  to  devise  a  ballot  which  would  make  it  convenient 
for  this  majority  to  express  its  preference  most  easily.  Sec- 
ondly, with  the  multitude  of  candidates  upon  the  ticket  no 
voter  is  able  to  trust  to  his  uninstructed  and  unassisted  knowl- 
edge. The  Massachusetts  type  recognizes  this.  Contrary  to 
the  Australian  system,  the  candidates  appear  with  party  desig- 
nations, and  it  may  safely  be  asserted  that  in  many  instances 
the  electorate  votes  more  or  less  indiscriminately  for  unknown 
candidates  who  bear  the  party  designation.  In  theory  this  is 
entirely  proper,  for  the  party  designation  carries  with  it  the 
party  guarantee  of  principle  and,  presumably,  of  integrity. 
Practically,  however,  the  force  of  this  argument  is  broken  by 
the  fact  that  many  of  the  officers  chosen  are  not  political  but 
administrative  and,  secondly,  that  the  same  party  label  may 
mean  different  things  for  presidential  electors  and  for  state 
surveyors.  Even  among  political  officers  examples  are  numer- 
ous where  congressmen  or  state  senators  are  at  variance  with 
the  political  party  whose  designation  they  bear. 

The  chief  advantage  of  the  party-column  ballot  is  that  it  objections 
enables  the  majority  of  the  voters  to  express  their  opinions  party- 
easily  and  quickly.  This,  however,  is  not  without  serious  draw-  column  type 
back.  Very  often,  and  perhaps  with  increasing  frequency  owing 
to  the  direct  primaries,  there  will  appear  on  the  ballot  candi- 
dates duly  nominated  by  the  party  and  for  whom  the  members 
of  the  party  have  little  sympathy  or  approval.   To  make  it 
more  difficult   for  a  discriminating  member  of  the  party   to 
choose  between  the  good  candidates  and  the  bad  choices  of  his 
party  and  to  advertise  his  selection  by  the  time  it  takes  him 
to  mark  the  ballot  is  unfortunate. 

The  real  remedy  for  the  faults  of  the  ballot  lies  not  in  the  The  short 
adoption  of  the  Massachusetts  type  or  of  the  party-column 
type  with  modifications  or  improvements,  but  in  a  more  serious 


96        STATE  AND  MUNICIPAL  GOVERNMENT 

and  fundamental  alteration  of  the  electoral  system.  This 
movement  has  been  enthusiastically  sponsored  by  reformers  in 
many  states  and  is  generally  designated  as  the  "short  ballot."^ 
The  theory  The  demand  for  the  long  ballot  rests  upon  the  theory  that 
touot  '°°^  the  election  of  numerous  officers  extends  democratic  control ; 
that  the  electorate  can  best  control  the  policy  of  the  state  by 
the  direct  choice  of  the  officials  who  frame  or  administer  this 
policy.  As  a  theory  this  perhaps  may  be  true ;  certainly  at- 
tractive and  fervid  appeals  are  made  to  this  principle.  Prac- 
tically, however,  the  theory  is  not  correct.  As  many  writers 
have  for  years  been  pointing  out,  the  elaboration  of  the 
machinery  of  government  and  the  multiplication  of  elective 
officers  tend  to  restrict  the  free  and  intelligent  choice  of  the 
electorate.  No  single  elector  can  expect  to  have  very  definite 
personal  knowledge  of  many  of  the  candidates  for  whom  he 
is  asked  to  vote.  He  therefore  either  votes  blindly  or  un- 
hesitatingly ratifies  the  choice  of  his  party.  Where  nomina- 
tions were  made  by  party  conventions,  and  where  party 
conventions  were  composed  of  disinterested,  wise,  intelligent 
party  leaders  who  attempted  to  select  the  best  men  and  best 
candidates  as  the  party  nominees,  the  party  designation  was 
perhaps  a  good  guide.  Too  seldom,  however,  did  party  con- 
ventions even  approximate  this  high  standard.  The  introduc- 
tion of  the  direct  primary,  while  weakening  the  control  of  the 
party  organization,  added  to  the  burden  of  the  voter.  Candi- 
dates for  the  same  number  of  offices  had  to  be  chosen  at  the 
primary  and  had  to  be  voted  for  at  the  election,  and  few 
voters  were  able  to  discriminate  and  to  express  an  intelligent 
opinion  concerning  the  aspirants  within  their  own  party. 
The  long  That  these  criticisms  are  real  may  be  seen  from  an  analysis 

exemplified   o^   ^   ballot    for    Multnomah    County,    Oregon.     This    ballot, 
which  is  nearly  three  feet  long  and  over  a  foot  wide,  contains 

^One  of  the  best  expositions  of  the  necessity  for  simplification  of  the 
ballot  is  "The  Ballot's  Burden,"  by  C.  A.  Beard,  in  the  Political  Science 
Quartrrly.  Vol.  XX1\'.  The  substance  of  this  article  is  reprinted  in 
"American  Government  and  Politics,"  pp.  474-487,  by  the  same  author. 
See  also  R.  S.  Childs,  Short-Ballot  Principles.  The  National  Short  Ballot 
Association,  with  headquarters  in  New  York,  is  engaged  in  active 
propaganda  for  these  principles. 


THE  CAMPAIGN  97 

142  names  of  candidates  for  42  offices.  In  addition  the  voter 
is  asked  to  express  an  opinion  on  29  legislative  proposals.  An 
enumeration  of  the  offices  to  be  filled  at  this  election  will 
emphasize  the  difficulties  of  the  voter.  Voters  are  asked  to 
vote  for  a  United  States  senator,  a  representative  to  Congress, 
a  governor,  a  state  treasurer,  four  justices  of  the  supreme  court, 
an  attorney-general,  a  superintendent  of  public  instruction,  a 
state  engineer,  a  commissioner  of  labor  statistics,  an  inspector 
of  factories  and  workshops,  a  commissioner  of  the  railroad 
commission  of  Oregon,  a  superintendent  of  water  division 
No.  I,  a  judge  of  the  circuit  court,  a  state  senator  from  the 
thirteenth  and  one  from  the  fourteenth  district,  a  representa- 
tive from  the  seventeenth  and  twelve  representatives  from  the 
eighteenth  representative  district,  two  county  commissioners,  a 
sheriff,  a  county  clerk,  a  county  treasurer,  a  county  auditor, 
a  county  surveyor,  a  county  coroner,  a  judge  of  the  district 
court  department  No.  i,  a  judge  of  the  district  court  de- 
partment No.  2,  a  judge  of  the  district  court  department 
No.  3,  and  a  constable  for  the  Portland  district.  In  addition, 
there  are  ten  amendments  to  the  constitution  referred  to  the 
people  by  the  legislature  and  nineteen  proposals  put  upon 
the  ballot  by  initiative  petition.  To  assume  that  even  the 
most  intelligent  voter  could,  in  the  few  minutes  the  law  allowed 
him  to  occupy  the  voting  booth,  make  a  discriminating  selec- 
tion on  this  ballot  is  ridiculous.  The  absurdity  perhaps  is 
somewhat  lessened  by  the  fact  that  Oregon  sends  to  each  voter 
before  the  election  an  excellent  publicity  pamphlet  which  dis- 
cusses the  candidates  and  the  proposed  measures.  The  ballot 
then  becomes  an  examination  paper  upon  the  pamphlet,  but 
the  test  is  too  difficult.  The  Oregon  ballot  is  of  the  Massachu- 
setts variety,  which,  it  may  be  remembered,  is  not  the  pure 
Australian  type,  but  contains  party  designations.  It  may 
safely  be  asserted  that  the  majority  of  the  electors  in  Mult- 
nomah County  pass  this  test  with  the  aid  of  the  party  desig- 
nations rather  than  as  the  result  of  discriminating  knowledge. 
According  to  the  short-ballot  principle  only  those  officers 
should  be  voted  for  who  are  responsible  for  the  formulation  of 
policy  and  the  supervision  of  its  execution.   The  attempt  in 


98        STATE  AND  AIUNICIPAL  GOVERNMENT 

the  short  ballot  is  to  centralize  the  executive  power.  It  is 
argued  that  if  one  executive  is  chosen  in  whom  is  vested  the 
appointments  of  the  other  subordinate  executives,  the  policy 
of  the  administration  will  be  harmonized  and  the  responsibility- 
centered  upon  the  chief  executive.  This  is  exactly  the  prin- 
ciple applied  in  national  affairs,  where  the  president  and  his 
possible  successor,  the  vice  president,  are  the  only  executive 
officers  subject  to  election. 
The  prin-  Applying  these  principles  to  the  ballot  of  INIultnomah 
shorTbauot^  County,  we  find  that  the  voters  would  be  asked  to  choose  a 
th^b^lrt^f  ^'lited  States  senator,  a  representative  in  Congress,  a  governor, 
Multnomah  2  State  scuators,  13  state  representatives,  2  county  commis- 
sioners, as  well  as  4  justices  of  the  supreme  court,  a  judge  of 
the  circuit  court,  and  3  judges  for  the  district  courts,  making 
a  total  of  28  as  against  42  offices  to  be  filled.  This  would 
make  a  somewhat  shorter  ballot  than  the  actual  ballot  used. 
Enthusiastic  advocates  of  the  short-ballot  principle  would 
probably  go  even  further  and  advocate  the  removal  of  the 
judges  from  the  ticket,  vesting  their  appointment  in  the  gover- 
nor or  electing  them  by  a  special  judicial  ballot.  The  same 
principle  of  a  separate  ballot  might  be  applied  to  the  county 
officers.  There  would  still  remain  to  be  considered  the  legisla- 
tive propositions  put  on  the  ballot  by  the  initiative  and  refer- 
endum. Even  at  best,  however,  with  all  the  abbreviations  of 
the  ballot  and  eliminations  of  elective  offices,  the  task  of  the 
elector  is  difficult.  Moreover,  it  must  be  admitted  that  at 
present  probably  few  states  would  consent  to  such  a  reform  as 
was  suggested  in  the  case  of  the  Oregon  ballot. 
Effect  of  the      Although  few  if  any  states  have  adopted  the  short-ballot 

short-ballot         ..,.,.  .  ,  .  i  •         i         i 

movement  principles  in  their  entirety,  the  movement  is  making  headway. 
This  is  true  particularly  in  municipal  affairs,  where  more  power 
of  appointment  is  given  to  the  mayor  and  thus,  to  that  extent, 
fewer  names  appear  upon  the  ballot.  Similar  movements  are 
found  in  the  reorganization  of  state  governments.  Always 
greater  appointive  power  is  given  to  the  governor,  and  while 
it  cannot  be  said  that  the  number  of  elective  officers  is  de- 
creased, the  choice  of  the  increasing  number  of  state  officers 
has  not  been  given  to  the  voters.    In  spite  of  all  arguments 


THE  CAMPAIGN  99 

and  demonstrations  the  voters  are  apparently  not  yet  ready  to 
surrender  their  fancied  control  of  executive  offices  to  any  one 
officer  and  insist  on  preserving  the  form  of  election.  To  a 
large  extent  this  is  a  delusion, — a  delusion  which  certain  party 
organizations  take  pains  to  encourage.  The  more  offices  there 
are  to  fill,  the  more  work  there  is  for  the  organization  and  the 
less  the  chance  that  the  voter  will  exercise  independent  choice. 
As  long  as  the  ticket  contains  thirty  or  forty  names,  just  so 
long  must  the  voter  be  aided  in  the  selection  of  these  names 
and  instructed  by  party  symbols  as  to  the  character  of  the 
candidates.  The  party  organization  willingly  assumes  the  re- 
sponsibility for  this  aid  and  instruction. 


Absent  Voting 

The  practice  of  absent  voting   is   not  new   in   the   United  Absent 
States.    It  was  first  introduced  in  1635  in  the  Massachusetts  ^°  '"^ 
Bay  Colony.    However,  Vermont  in   i8g6  was  the  first  state 
to  adopt  absent  voting  in  modern  times.    Its  theoretical  justi- 
fication is  in  harmony  with  many  of  our  election  laws ;  namely, 
to  insure  a  wide  expression  of  popular  opinion  and  to  make 
that   expression    as    convenient    for    the    voters    as   possible. 
These  theoretical  considerations  led  to  laws  in  a  few  states, 
but  the  entrance  of  the  United  States  into  the  World  War 
and  the  consequent  absence  of  large  numbers  of  the  electorate 
greatly  accelerated   the  movement.    Up   to    191 7   twenty-four 
states  had  adopted  laws  which  in  one  way  or  another  provided  summary 
for  some  form  of  absent  voting.    These  laws  are  extremely  °   ^^^' 
varied,  but  in  general  they  contain  the  following  provisions.^ 

Some  states  provide  that  the  voter  must  be  a  certain  dis-  (i)  Distance 
tance  from  his  home;    some  states  restrict  the  privilege  to 
absent  voters  within  the  state,  others  to  voters  within  the 
United  States ;  while  some  laws  make  no  restriction  whatever. 
Some  states  restrict  the  reason   for  absence  to  unavoidable 

^Bulletin  No.  23,  in  Bulletins  for  Massachusetts  Constitutional  Con- 
vention, treats  the  subject  and  gives  a  digest  of  the  constitutional  pro- 
visions in  operation  in  1918,  as  well  as  a  table  of  statutes.  P.  O.  Ray 
covers  the  same  subject  in  American  Political  Science  Review,  Vol.  VIII, 
pp.  442-445;  Vol.  XII,  pp.  251-261. 


100     STATE  AND  MUNICIPAL  GOVERNMENT 


(2)  The 
reason  for 
absence 

(3)  Kinds  of 
elections 

(4)  The 
application 


(5)  The 
voting 


(6)  Counting 


(7)  Regis- 
tration 


Character 
of  laws 


Reasons  for 
laws 


business  absences,  others  to  illness,  and  some  do  not  specify 
any  cause.  The  laws  vary  in  allowing  the  absent  voter  to  vote 
at  primaries  or  general  elections  or  on  initiative  and  referen- 
dum propositions.  Most  states  require  the  absent  voter  to 
make  application  to  the  officers  in  charge  of  the  election  of 
his  district  a  certain  time  before  the  election.  On  complying 
with  these  formalities  the  officer  mails  a  blank  ballot  to  the 
address  designated  by  the  voter.  The  voter  upon  receiving 
this  ballot  must  mark  it  in  the  presence  of  a  notary  or  some 
designated  public  official  and  inclose  the  same  in  an  official 
envelope  and  mail  it  to  his  home  town  in  time  to  be  received 
before  the  election.  On  the  election  day  the  officer  who  has 
received  the  ballot  sends  it  to  the  voting  precinct,  where 
various  provisions  are  made  under  the  different  laws  provid- 
ing for  casting  the  ballot,  subjecting  it  to  the  right  of  chal- 
lenge, and  in  some  states  providing  for  a  hearing  in  the  case 
of  challenge.  Some  states  go  so  far  as  to  allow  absent  voters 
to  register  by  mail. 

In  some  of  the  states  the  laws  are  very  hastily  and,  to  all 
appearances,  carelessly  prepared.  In  others,  as  Indiana,  Illi- 
nois, and  Minnesota,  the  laws  are  carefully  framed  and  cover 
all  the  points  mentioned  above,  providing  both  for  the  con- 
venience of  the  voter  and  for  security  against   fraud. 

The  movement  is  a  recognition  of  the  changing  economic 
and  social  conditions  of  the  electorate.  Large  groups  are  more 
and  more  compelled  to  be  absent  for  definite  periods  from 
their  homes ;  among  these  classes  are  commercial  travelers, 
railway  employees  (like  conductors,  trainmen,  engineers,  and 
firemen),  chauffeurs,  sailors,  fishermen,  students,  artisans  of 
certain  classes.  In  19 15  it  was  estimated  that  nearly  thirty 
thousand  men  were  absent  from  Massachusetts  on  election  day. 
Not  only  should  these  men  have  been  given  the  opportunity 
to  express  their  preference,  but  in  a  doubtful  election  their 
votes  might  have  altered  the  result.  Hardly  any  criticism  can 
be  urged  against  the  system,  except  the  possibility  for  fraud. 
But  if  the  statutes  are  carefully  drawn,  this  is  reduced  to 
a  minimum. 


THE  CAMPAIGN  loi 

Preferential  Voting 

In  some  of  the  early  constitutions  of  the  original  states  a  Dangers  of 
majority  vote  was  required  for  the  election  of  officers.  This  is  plurality  ^ 
also  the  case  in  the  election  of  the  legislative  representatives  ^°^^ 
in  many  countries  of  Europe.  The  disadvantages  of  this  plan 
are  obvious.  Where  more  than  two  candidates  are  competing 
it  frequently  happens  that  no  candidate  receives  an  absolute 
majority  of  the  votes  cast.  In  European  countries  and  in  a 
very  few  American  states  a  second  election  is  ordered.  In 
1855  Massachusetts,  when  abandoning  the  majority  require- 
ment, provided  that  the  candidate  receiving  the  highest  number 
of  votes  should  be  declared  elected.  This  avoids  the  difficulties 
and  inconveniences  of  a  second  election,  but  may  bring  mis- 
representation of  a  graver  sort.  Where  there  are  more  than 
two  candidates  and  no  one  receives  the  actual  majority  of 
votes  cast,  the  candidate  receiving  a  plurality  of  votes  may 
be  the  choice  of  the  minority  of  the  voters ;  that  is,  the  votes 
may  be  divided  between  a  number  of  candidates,  and  the  one 
obtaining  the  highest  vote  may  receive  only  a  minority  of  the 
total  votes  cast.  In  other  words,  the  majority  of  voters  may 
desire  some  other  candidate  than  the  candidate  actually  chosen. 

Preferential  voting  attempts  to  remedy  the  evils  both  of  a  preferential 
second  election  and  of  a  minority  choice.^  It  is  a  scheme  by  ^°*^°s 
which  the  voters  indicate  on  the  ballot  their  first,  second,  and 
other  choices.  If  any  candidate  receives  an  absolute  majority 
of  first  choices,  that  candidate  is  declared  elected ;  if,  how- 
ever, no  candidate  receives  a  majority  of  first  choices,  the  first 
and  second  choices  are  added  together  in  order  to  see  if  anyone 
reaches  the  majority.  If  this  fails,  the  third  choices  are  then 
.counted.  Should  there  be  a  tie,  that  candidate  is  declared 
elected  who  receives  the  largest  number  of  first-choice  votes. 

^See  Bulletin  No.  27,  in  Bulletins  for  the  Massachusetts  Constitutional 
Convention;  R.  M.  Hull,  "Preferential  Voting  and  How  it  Works,"  in 
National  Municipal  Review,  Vol.  I,  pp.  386-400;  L.  J.  Johnson,  "Prefer- 
ential Voting,"  ibid.  Vol.  Ill,  pp.  83-92;  M.  P.  Porter,  "Preferential 
Voting  and  the  Rule  of  the  Majority,"  ibid.  Vol.  Ill,  pp.  581-585 ; 
R.  L.  Ashley,  "Preferential  Voting,"  in  Cyclopedia  of  American  Govern- 
ment, Vol.  Ill,  p.  633. 


102      STATE  AND  MUNICIPAL  GOVERNMENT 

Extension         There  are  various  other  schemes  of  preferential  voting  which 
tiarvoting'   have  been  tried,  but  the  method  is  generally  that  just  de- 
scribed.    Up   to    191 7   preferential   voting   was   in   vogue  in 
fifty-seven  different  cities  in  the  United  States. 

Proportional  Representation 

Theory  of  Proportional  representation  should  be  sharply  distinguished 
repre*senta-  from  preferential  voting.  Preferential  voting  is  the  attempt  to 
^'°°  insure  success  to  the  majority  of  the  electorate  by  counting  sec- 

ond and  third  choices;  proportional  representation  is  based 
upon  another  theory.  Its  advocates  claim  that  a  representa- 
tive assembly,  whether  it  be  a  state  legislature  or  a  municipal 
council,  should  represent  not  simply  the  majority  voters  but  all 
shades  of  opinion ;  in  other  words,  that  not  merely  the  ma- 
jority party  in  any  single  locality  should  be  represented,  but 
that  the  majority  party  and  all  minority  parties  should  be  rep- 
resented in  proportion  to  the  votes  cast  by  the  different  groups. 
Spread  of  This  Scheme  was  ardently  put  forward  by  John  Stuart  Mill 

representa^  and  has  been  advocated  in  the  United  States  since  the  Civil 
^'°'^  War.    Certain  forms  were  tried  in  Illinois  and   Pennsylvania 

in  the  seventies,  but  interest  in  the  scheme  languished.    In  the 
last  decade  of  the  nineteenth  century  the  movement  received 
new  strength  because  of  the  awakened  interest  in  direct  legis- 
lation and  a  more  popular  control  of  the  instruments  of  govern- 
ment.   Although  the  scheme  has  been  widely  discussed,  it  has 
been  adopted   in    its   complete   form  only    for   the   choice  of 
city  councils.' 
Methods  of        There  are  various  systems  of  proportional  representation.- 
repJesenta-^  The  elements  of  the  plans  adopted  in  the  United  States  are  as 
t'o°  follows:   The  voter  indicates  on  his  ballot  his  first,  second, 

^Ashtabula,  1915  ;   Boulder,  iqiy  ;   Kalamazoo,  IQ18. 

^See  Bulletin  No.  28,  in  Bulletins  for  the  Massachusetts  Constitutional 
Convention,  together  with  bibliography;  also  Proportional  Representa- 
tion Revirii',  and  "Pamphlets"  published  by  the  American  Proportional 
Representation  League,  Haverfurd,  Pennsylvania;  A.  N.  Holcombe,  State 
Government,  pp.  456  et  seq.;  A.  R.  Hatton,  "The  Ashtabula  Plan,"  Amer- 
ican Proportional  Representation  League  Pamjihlet  No.  6.  The  classical 
books  are  J.  R.  Commons,  Proportional  Representation,  and  J.  H.  Hum- 
phrey, Proportional  Representation ;  a  Study  in  Election  Methods. 


THE  CAMPAIGN  103 

third  choices,  and  so  forth.  A  quota  is  then  determined  by 
dividing  the  total  number  of  ballots  cast  by  the  number  of 
persons  to  be  elected,  plus  one.  All  candidates  who  receive 
the  quota  of  first-choice  ballots  are  declared  elected.  The 
surplus  votes  not  needed  by  the  candidates  elected  are  then 
distributed  to  the  other  candidates  according  to  the  choices 
indicated  on  the  ballots.  And  the  process  is  continued  until 
a  sufficient  number  of  candidates  is  declared  elected.  Another 
method,  which  is  used  in  Belgium,  Sweden,  Finland,  Switzer- 
land, and  France,  is  the  list  system.  This  system  is  based  on 
the  assumption  that  nominations  will  be  made  by  parties,  and 
the  scheme  endeavors  to  secure  proportional  party  representa- 
tion as  well  as  to  provide  for  the  personal  preferences  of  the 
electors.  The  names  of  the  candidates  for  the  offices  to  be 
filled  are  grouped  under  party  designations.  The  voter  marks 
the  candidates  he  desires  to  be  elected.  The  ballots  are  voted 
by  marking  a  cross  against  one  name  on  one  list,  which  means 
two  things:  first,  that  the  vote  is  to  count  in  determining  the 
number  of  representatives  that  list  shall  receive  and,  second, 
in  securing  a  high  place  on  that  list  for  the  candidate  for  whom 
the  voter  has  voted.  Each  list  is  entitled  to  a  number  of  seats 
proportional  to  the  total  vote  of  all  the  candidates  on  the  list. 
The  successful  candidates  on  each  list  are  determined  by  the 
number  of  votes  each  has  received. 

Without  doubt  proportional  representation  will  secure  the  Merits  and 
election  of  members  representative  of  different  groups.    The  proportional 
scheme,  however,  strikes  a  severe  blow  at  the  system  of  party  ^epresenta- 
government.    In  Ashtabula,   for  example,   proportional   repre- 
sentation produced  a  very  good  picture  of  the  racial,  religious, 
and  economic  divisions  of  the  city.    Even  the  wets  and  the 
drys  were  represented.    But  in  the  choice  of  these  councilors 
were  not  the  voters  influenced  by  some  one  particular  issue 
rather  than  by  the  necessity  of  choosing  a  representative  to 
deal  with  all  the  issues  which  might  be  presented  in  the  city 
government?    In  other  words,  a  "wet"  or  a  "dry"  member 
may  satisfactorily  represent  his  supporters  on  that  issue,  but 
on   other   or   larger   issues   totally    fail    to   satisfy   his  group. 
Political  parties  attempt  to  select  representatives  who  shall 


ion 


104      STATE  AND  MUNICIPAL  GOVERNMENT 

adequately  represent  the  party  on  all  issues.  Party  principles 
and  policies  are  necessarily  the  result  of  compromise,  and  the 
persons  chosen  by  the  party  system  may  frequently  fail  to 
satisfy  all  elements  of  the  party.  But  the  party  system  and 
the  choice  of  representatives  by  either  majority  or  plurality 
vote  does  represent  the  will  of  the  constituency  to  act  on 
certain  matters. 
Plan  for  In    municipal     government — in    fact,    generally    in    local 

represen°-'^^^  government,  of  which  state  governments  are  the  highest  mani- 
th^^u^'t^d  ffistations — there  is  evidently  a  place  for  proportional  repre- 
states  sentation.'  As  will  be  seen,  the  political  parties  seldom  do  more 
in  state  government  than  to  insure  the  election  of  the  speaker 
and  the  distribution  of  the  patronage.  Members  of  state  legis- 
latures do  not  usually  vote  according  to  party  lines.  There 
is  thus  much  less  reason  for  party  government  in  state  legis- 
latures and  correspondingly  many  more  arguments  for  the 
adoption  of  some  system  of  proportional  representation. 


CHAPTER  VI 
THE  INITIATIVE,  REFERENDUM,  AND  RECALL 

In  the  preceding  chapters  the  political  system  of  the  state  Direct  ac- 
has  been   discussed;    the  organization   of   the  electorate  into  electorate  in 
parties,  the  actual  process  of  voting  at  the  elections,  and  the  ,Jf'eg°°fa-^ 
form  of  the  ballot  have  been  described.    The  electorate,  how-  tion  and 

administra- 

ever,  controls  the  action  of  state  governments  in  other  ways,  tionthrough 
A  most  effective  means  is  afforded  by  direct  legislation  through  tive^refeV- 
the  initiative  and  referendum.^    Some  of  the  effects  of  direct  ^^^^^^^^  ^"-^ 
legislation  upon  the  legislature  and  the  legislative  product  will 
be  discussed   in   succeeding  chapters.    Since   the  use   of   the 
initiative,  referendum,  and  recall  requires  action  by  the  elec- 
torate directly  at  the  polls,  it  seems  advisable  to  discuss  the 
operation  of  the  initiative  and  referendum  while  dealing  with 
the  electorate.    This  is  particularly  true  because  all  proposals 
for  legislation,   constitutional   amendments,   and   questions   of 
recall  appear  upon  the  ballot.    Direct  control  over  legislation 
and  administration  is  obtained  through  the  use  of  the  political 

1  There  is  a  large  amount  of  material  upon  the  initiative  and  referen- 
dum. An  extremely  clear  and  concise  statement  of  the  varieties  of 
forms,  together  with  illustrated  tables  and  typical  constitutional  provi- 
sions, is  to  be  found  in  G.  H.  Haynes,  The  Initiative  and  Referendum, 
Boston  (1917).  This  is  also  published  as  Bulletin  No.  6,  in  Bulletins 
for  the  Massachusetts  Constitutional  Convention.  E.  P.  Oberholtzer's 
"The  Initiative,  Referendum,  and  Recall  in  America"  (iQii)  is  a  stand- 
ard work;  the  supplementary  chapters  covering  the  period  from  1900  to 
1910  are  severely  critical.  D.  F.  Wilcox's  "Government  by  All  the  People, 
or  the  Initiative,  Referendum,  and  Recall  as  Instruments  of  Democracy" 
(1912),  is  for  the  most  part  an  enthusiastic  defense.  A.  L.  Lowell, 
Public  Opinion  and  Popular  Government  (1914))  presents  a  carefully 
studied  criticism,  together  with  valuable  tables  on  the  operation  of  the 
initiative  and  referendum  in  Switzerland.  A.  N.  Holcombe's  "State 
Government  in  the  United  States"  (1016),  chap,  xiii,  contains  a  thought- 
ful and  suggestive  discussion  and  analysis.  J.  D.  Barnett's  "The  Opera- 
tion of  the  Initiative,  Referendum,  and  Recall  in  Oregon"  (191$)  is  a 
scholarly  and  valuable  presentation  of  the  Oregon  system. 

105 


io6      STATE  AND  MUNICIPAL  GOVERNMENT 


Definitions 
(i)  The 
initiative 


(2)  The 
referendum 


Distinction 


Varieties 
of  the 
referendum: 


(i)  The  con- 
stitutional 
referendum 


machinery  which  has  just  been  described.  Its  success  is  partly 
conditioned  by  the  laws  governing  the  conduct  of  elections  and 
the  preparation  of  the  ballot.  Conversely,  the  addition  of 
these  questions  complicates  the  problems  of  the  ballot  which 
have  just  been  discussed. 

The  initiative  is  a  device  by  which  a  group  of  people  may, 
through  petition,  place  a  measure  upon  the  ballot.  If  a  suf- 
ficient majority  of  the  electorate  approves  this  measure  it 
becomes  law.  The  measure  may  be  either  a  statute  or  a  con- 
stitutional amendment ;  it  may  be  referred  directly  to  the 
people  or  first  to  the  legislature.  The  significant  thing  to  note, 
however,  is  that  the  measure  is  proposed  or  initiated  by  the 
electorate,  which  also  accepts  or  rejects  it  at  the  polls.  In  both 
cases  it  is  the  direct  action  of  the  electorate. 

The  referendum  is  a  device  by  which  a  measure  adopted  by 
some  legislative  body  may  be  referred  directly  to  the  electorate 
for  its  approval  or  rejection.  The  common  characteristic  of 
all  varieties  of  the  referendum  is  that  it  receives  final  action 
from  the  electorate. 

The  initiative  is  positive.  Its  purpose  is  to  obtain  legislation 
which,  there  is  reason  to  believe,  the  legislative  bodies  will  not 
enact.  The  intent  of  the  referendum  is  negative.  It  prevents 
the  adoption  of  a  measure  until  approved  by  the  voters.  The 
initiative  acts  as  a  spur,  the  referendum  as  a  brake. 

The  referendum  may  be  classified  according  to  the  measures 
for  which  it  is  used.  When  applied  to  constitutional  amend- 
ments it  is  called  the  constitutional  referendum ;  when  applied 
to  acts  of  the  legislature  it  is  called  the  statutory  referendum. 

The  constitutional  referendum  has  been  long  in  use  in  the 
United  States.  In  ISIassachusetts  it  was  first  invoked  in  1641 
and  was  frequently  used  on  constitutional  questions  during  the 
Revolutionary  period.^  Its  most  effective  application  was  in 
1780  on  the  question  of  the  adoption  of  the  Massachusetts 
constitution.  Since  then  the  practice  has  been  increasingly 
followed  until  almost  every  state  refers  the  adoption  of  con- 
stitutional amendments  directly  to  the  people.- 

'  Sec  Bulletin  No.  6,  in  Bulletins  for  the  Massachusetts  Constitutional 
Convention,  p.  ig6.  -For  exceptions  sec  page  31. 


INITIATIVE,  REFERENDUM,  AND  RECALL     107 

The  working  of  the  constitutional  referendum  is  familiar  to  working  of 
all,  and  in  general  its  results  have  been  satisfactory.  The  tutionai  ' 
measures  submitted  have  been  framed  either  as  the  work  of  a  "^e^^fendum 
constitutional  convention,  where  they  were  subject  to  debate 
and  criticism,  or  by  the  legislatures' — in  some  states  by  two 
successive  legislatures.  As  a  result,  the  measures  have  at- 
tracted considerable  popular  interest  and  attention.  It  thus 
has  been  assumed  also  that  public  opinion  would  be  formulated 
upon  them.  This  is  by  no  means  the  case.  Yet  in  1853  the 
eight  amendments  proposed  by  the  Massachusetts  constitu- 
tional convention  were  rejected  by  a  vote  varying  from  .8  to  1.8 
per  cent  greater  than  was  cast  for  the  candidates  for  governor 
on  the  same  day.  In  1855,  however,  six  of  these  amendments 
were  adopted  by  a  vote  of  only  from  14.4  to  14.7  per  cent  of 
the  vote  for  governor.  ''In  fact,  of  the  forty-four  amendments 
which  have  been  adopted,  sixteen  have  been  ratified  at  elec- 
tions where  not  30  per  cent  of  those  who  voted  for  governor 
had  voted  for  or  against  the  amendment."^ 

The  statutory  referendum  may  be  defined  as  the  submission  (2)  The 
of  a  measure  passed  by  the  legislature  to  the  electorate  for  referendum: 
popular  approval.  There  are  two  varieties  of  this:    (i)   The  (a)  The 
state-wide  referendum.    By  this  device  a  legislative  measure  referendum 
affecting  the  entire  state  is  submitted  to  the  electorate  of  the 
entire  state.    (2)  The  local  referendum.    By  this  means  ques-  (6)  The  local 

rr     .•  r    1        1  i       •        i     r       referendum 

tions  affecting  areas  of  local  government  are  submitted  for 
approval.  In  strict  theory  this  is  not  an  example  of  direct  legis- 
lation, but  rather  a  form  of  local  government.  The  commonest 
way  in  which  it  was  formerly  used  was  the  submission  of  the 
question  whether  licenses  for  the  sale  of  alcoholic  beverages 
should  be  granted  in  particular  communities.  It  is,  however, 
increasingly  employed  as  a  means  by  which  municipalities  may 
adopt  or  amend  their  charters  or  may  determine  whether  legis- 
lative acts  shall  apply  to  their  particular  locality. 

The  referendum  mav  also  be  classified  as  compulsory  or  op-  (3)  The 
tional.  It  is  called  compulsory  when  the  legislature,  without  the  referendum 
intervention  of  the  electorate,  submits  a  question  for  popular 

^See  Bulletin  No.  6,  in  Bulletins  for  the  Massachusetts  Constitutional 
Convention,  p.  198. 


io8      STATE  AND  MUNICIPAL  GOVERNMENT 


(4)  The 
compulsory 
legislative 
referendum 


(5)  The 
optional 
referendum 


Varieties 
of  the 
initiative : 
(i)  Consti- 
tutional 


(a)  Direct 


approval.  All  constitutional  referenda  are  compulsory.  In  many 
state  constitutions  there  are  provisions  requiring  the  legisla- 
ture to  submit  for  popular  approval  certain  types  of  questions ; 
for  example,  the  increase  of  the  debt  limit,  the  change  of  the 
location  of  the  state  capital,  and  so  forth. 

In  some  states  the  legislature  may,  if  it  sees  fit,  submit  any 
law  to  the  electorate.  The  courts  are  by  no  means  unani- 
mous on  the  question  of  the  right  of  the  legislature  to  do  this 
without  some  constitutional  authority ;  in  general  they  have 
denied  this  right  on  the  ground  that  it  was  a  delegation  of 
power  granted  to  the  legislature,  but  they  have  allowed  the 
legislature  to  submit  to  the  people  the  question  of  the  time 
at  which  the  proposed  measure  shall  go  into  operation — which 
is  practically  equivalent  to  submitting  the  measure  for  ap- 
proval. In  some  states,  however,  the  constitution  expressly 
grants  this  power  to  the  legislature. 

By  means  of  the  optional  referendum  the  people  by  petition 
compel  the  legislature  to  submit  a  measure  already  adopted 
by  that  body  to  the  electorate  for  popular  approval.  The 
optional  referendum  is  compulsory  upon  the  legislature,  but  it 
is  optional  with  the  people  whether  or  not  it  shall  be  invoked. 
As  might  be  expected,  this  form  of  referendum  has  aroused 
much  criticism  on  the  part  of  the  uncompromising  advocates 
of  representative  government  and  the  opponents  of  direct  legis- 
lation. It  must  be  admitted,  however,  that  the  measures  sub- 
mitted to  the  people  as  the  result  of  an  optional  referendum 
have  aroused  wider  public  interest  and  have  received  a  larger 
percentage  of  the  votes  cast  at  the  election  than  the  measures 
submitted  as  the  result  of  the  compulsory  referendum. 

The  initiative  may  be  classified  according  to  the  measures 
to  which  it  is  applied.  It  is  called  constitutional  when  constitu- 
tional amendments  are  framed  by  the  people  and  as  the  result 
of  a  petition  are  submitted  to  the  electorate  for  approval  or 
rejection.  It  is  called  a  statutory  initiative  when  a  law  is 
framed  by  the  people  and  submitted  to  the  electorate  as  the 
result  of  petition.  The  initiative  may  be  direct  or  indirect. 
In  the  use  of  the  direct  initiative  the  proposed  measure  is 
submitted  to  the  electorate  without  the  intervention  of  any 


INITIATIVE,  REFERENDUM,  AND  RECALL       109 

legislative  body  or  constitutional  convention.  By  the  indirect  (3)  indirect 
initiative  the  measure  is  proposed  by  the  people-and  submitted 
to  the  legislature  for  approval.  There  are  many  varieties  of 
this  type.  For  example,  the  legislature  may  itself  enact  a 
competing  measure  and  refer  the  two  directly  to  the  electorate. 
Or  the  legislature  may  amend  the  measure,  and  if  the  amend- 
ment satisfies  a  committee  of  the  original  proposers  and  the 
legislature  adopts  the  amended  measure,  nothing  is  submitted 
to  the  electorate.  In  this  form  the  indirect  initiative  is  little 
more  than  a  petition  to  the  legislature.  The  indirect  constitu- 
tional initiative  is  provided  in  the  forty-eighth  amendment  to 
the  Massachusetts  constitution,  adopted  in  1918.  According 
to  this  the  proposed  amendment  must  be  accepted  by  at 
least  one  fourth  of  the  members  of  two  successive  legislatures 
meeting  in  joint  sessions. 

It  is  to  be  noted  that  the  initiative  results  in  a  referendum :  common 
that  is,  the  measures  proposed  by  the  people  are  submitted  of  the 
to  the  electorate  in  a  manner  similar  to  those  referred  by  the  I'litiative 
legislature  to  the  people.    Thus,  it  is  possible  to  discuss  certain 
features  common  to  both  the  initiative  and  the  referendum. 
Both  the   initiative  and   the  optional   referendum   involve  a 
popular  petition.  The  initiative  and  all  types  of  the  referendum 
involve  a  reference  to  the  people.    Therefore,  to  understand  the 
workings  of  the  initiative  and  referendum  it  is  necessary  to 
discuss  the  provisions  for  the  petition,  the  election,  and  the 
majorities  necessary  for  acceptance. 

All  petitions  must  contain  the  measure  on  which  popular  The  petition 
action  is  to  be  invoked.^    The  question  arises  whether  these 
measures  should  appear  in  full  or  in  synopsis.    Most  states  The  measure 
allow  measures  passed  by  the  legislature  to  appear  under  their  appear  on 
title  in  brief  form,  on  the  assumption  that  the  electorate  is  the  petition 
sufficiently  familiar  with  them.    Practically  all  the  states,  how- 
ever, require  the  printing  of  the  full  and  complete  proposal  of 
all  popularly  initiated  measures.   There  is  a  question  whether 

iSee  W.  A.  Schnader,  "Proper  Safeguards  for  the  Initiative  and 
Referendum  Petition,"  in  American  Political  Science  Review,  Vol.  X, 
PP- 515-531;  and  F.  W.  Coker,  "Safeguarding  the  Petition  in  the  Initiative 
and  Referendum,"  ibid.  pp.  541-545. 


no      STATE  AND  MUNICIPAL  GOVERNMENT 

this  is  always  helpful.  It  is  to  be  feared  that  even  intelligent 
people  seldom  read  the  entire  measure.  They  are  attracted  by 
the  title  and  informed  by  the  newspapers.  But  it  is  certain 
that  the  signer  should  be  informed  of  the  nature  and  contents 
of  the  measure  for  which  his  signature  is  asked.  Whether  this 
information  is  properly  given  by  the  printing  of  a  long  and 
complicated  law  may  well  be  questioned.  The  problem  seems 
to  be  well  solved  by  the  statutes  of  Ohio,^  which  permit  the 
proponents  of  an  initiative  measure  to  submit  to  the  attorney- 
general  a  synopsis  of  the  measure,  which,  if  he  approves,  may 
be  printed  upon  the  petition  together  with  the  full  text  of 
the  measure. 
Who  should  In  many  states  the  measure  submitted  on  the  petition  may 
J^e^suJi^?  be  framed  according  to  the  desires  of  the  petitioners.  By  so 
doing  the  door  is  opened  for  misrepresentation,  for  ill-drawn 
measures,  and  for  measures  of  ambiguous  meaning  ;  for  example, 
in  1 9 10  in  Oregon  a  constitutional  amendment  was  proposed 
granting  the  suffrage  to  "every  citizen  of  the  United  States  of 
twenty-one  years  and  upwards,  who  shall  have  resided  in  the 
state  during  the  six  months  immediately  preceding  such  elec- 
tion. ...  It  is  expressly  provided  hereby  that  no  citizen  who 
is  a  taxpayer  shall  be  denied  the  right  to  vote  on  account  of 
sex."  This  measure  was  headed  on  the  ballot  ''Women's  Tax- 
paying  Suffrage  Amendment,  granting  to  taxpayers,  regardless 
of  sex,  the  right  of  suffrage."-  The  title  of  this  measure  was  mis- 
leading, for  the  substance  of  the  law  granted  equal  suffrage  to 
women  and  men.  Independently  of  the  merits  of  the  suffrage 
question,  the  voters  of  Oregon  are  to  be  commended  for  their 
rejection  of  such  an  ambiguously  framed  measure. 
Submission  To  prevent  the  submission  of  such  measures,  some  states  re- 
toarfofficiai  quire  that  the  initiative  measures  be  subjected  to  some  state 
officer,  generally  the  attorney-general,  whose  duty  it  is  to 
certify  that  the  measure  is  in  proper  form.  According  to 
Article  LXXIX  of  the  Massachusetts  constitution  the  attorney- 
general  must  certify  that  the  measure  is  neither  "affirmatively 

1  General  code  of  Ohio,  Vol.  II,  p.  2626. 

-Sec   G.  H.   Hayncs,  "'People's   Rule'   in   Oregon,    loio"   in   Political 
Science  Quarletly,  Vol.  XXVI,  pp.  32-65. 


review 


INITIATIVE,  REFERENDUM,  AND  RECALL     iii 

or  negatively,  substantially  the  same  as  any  measure  which  has 
been  qualified  for  submission  or  submitted  to  the  people  within 
three  years  .  .  .  and  that  it  contains  only  subjects  not  excluded 
from  the  popular  initiative  and  which  are  related  or  which 
are  mutually  dependent.  .  .  ."  Both  the  efficacy  and  propriety 
of  such  a  provision  may  be  questioned.  It  places  in  the  hands 
of  a  single  officer  the  power  to  alter  or  defeat  the  desires  of  a 
substantial  group  of  people  who  wish  to  place  their  proposal 
before  the  electorate.  It  must  be  admitted,  however,  that  there 
should  be  vested  somewhere  the  power  to  prevent  the  circula- 
tion of  petitions  containing  matters  which,  by  the  constitution 
of  the  state,  are  not  subjects  for  the  initiative.  Certainly, 
moreover,  the  people  should  be  protected  against  the  appear- 
ance of  obscure  or  ambiguous  measures.  Can  this  be  accom- 
plished by  vesting  such  power  in  the  attorney-general  ?  The 
Oregon  amendment  already  quoted  was  submitted  to  the 
attorney-general,  and  certified  by  h!m  to  be  in  proper  .form 
and  to  have  a  suitable  title.  It  is  unfair  to  make  deduc- 
tions from  one  case,  but  the  experience  of  Oregon  is  surely 
instructive. 

Practically  all  states  require  that  the  signers  of  a  petition,  who  should 
whether  to  propose  a  measure  or  to  compel  the  reference  of  petition? 
one  already  adopted  by  the  legislature,  should  be  qualified 
voters.  Indeed,  this  is  an  entirely  reasonable  restriction, 
hardly  open  to  discussion.  It  is  more  difficult,  however,  to 
devise  safeguards  which  will  insure  that  the  signers  of  a  peti- 
tion are  bona-fide  qualified  voters  and  at  the  same  time,  by 
these  very  safeguards,  not  to  prevent  nor  to  make  difficult  the 
gathering  of  signatures.  The  merits  of  the  various  proposals 
are  judged  from  two  opposite  points  of  view.  To  some  persons 
the  purpose  of  the  initiative  and  referendum  is  to  educate  the 
people,  so  that  anything  which  restricts  or  makes  difficult  the 
circulation  of  the  petition  is  to  be  condemned.  To  another 
school  the  initiative  and  referendum  are  to  be  used  sparingly, 
only  in  emergencies ;  thus  it  is  proper  to  place  restrictions 
around  the  gathering  of  signatures  in  order  to  be  sure  that 
only  those  people  who  are  bona-fide  electors  and  interested  in 
the  measure  shall  sign  the  petition. 


112      STATE  AND  MUNICIPAL  GOVERNMENT 

Who  may  Almost  all  the  states  provide  that  only  qualified  electors  shall 

thepeti-       circulate  petitions.    In  practice  this  has  not  been  found  suf- 
^^°^^  ficient.    A  more  stringent  prohibition  prevents  the  circulation 

of  petitions  for  a  compensation.  In  view  of  the  experiences 
which  certain  states  have  had  with  the  improper  solicitation 
of  signatures,  this  perhaps  may  be  defended.^  The  state  of 
Washington  has  devised  a  thorough  method  of  safeguarding 
the  signatures  on  petitions,  which,  while  by  no  means  typical 
of  the  practice  of  any  other  state,  probably  represents  the  most 
extreme  example  of  regulation.  The  petitions  may  not  be  cir- 
culated, but  are  to  be  deposited  with  the  registration  officer 
of  the  district.^  For  these  petitions  the  registration  officers 
give  receipts  and  are  required  to  display  in  their  offices  plac- 
ards with  these  words,  "Initiative  or  Referendum  Petitions 
May  Be  Signed  Here."  The  offices  are  required  to  be  open  on 
Friday  and  Saturday  evenings  between  the  hours  of  six  and 
nine  for  ninety  days  after  the  close  of  the  legislature,  or  for 
ninety  days  preceding  the  date  at  which  the  petitions  must 
be  filed  with  the  secretary  of  state.  On  attempting  to  sign  a 
petition  the  applicant  must  answer  the  questions  asked  by  the 
registrar  of  voters,  and  his  answers  must  correspond  to  those 
originally  given  upon  registration.  The  signature  on  a  petition 
must  be  compared  with  the  signature  in  the  registrar's  book. 
There  are  penal  provisions  making  it  a  misdemeanor  for  any 
person  to  sign  or  to  decline  to  sign  a  petition  for  any  compensa- 
tion or  reward,  to  advertise  for  signatures,  to  solicit  signatures 
or  to  pay  for  them,  to  attempt  to  prevent  signers,  or,  within 
one  hundred  feet  of  the  entrance  of  any  registration  office, 
to  solicit  or  attempt  to  induce  any  person  to  sign  or  not  to 
sign  a  petition. 

^Thc  circulation  of  one  petition  in  Oregon  was  intrusted  to  a  Port- 
land attorney  who  secured  slRnatures  at  the  rate  of  three  and  a  half 
cents  a  name.  Seven  of  the  solicitors  hired  by  this  attorney  signed  in 
turn,  on  each  other's  petitions,  names  in  a  disguised  handwriting.  See 
Slate  rx  rel.  v.  Olcott,  62  Oregon,  277,  in  American  Political  Science 
Revicii',  Vol.  X,  p.  519.  In  1913  one  solicitor  in  Ohio  testified  that  out 
of  the  7020  names  secured  by  him  not  one  was  genuine   (ibid.  p.  542). 

-1915  I.aws  of  Washington,  p.  186,  quoted  in  American  Political 
Science  Review,  Vol.  X,  p.  521. 


INITIATIVE,  REFERENDUM,  AND  RECALL     113 

The  Washington  law  without  doubt  makes  fraudulent  signa-  Criticism 
tures  practically  impossible.  It  does  more:  it  assures  the  elec- 
torate that  the  petition  is  signed  only  by  interested  parties. 
Unfortunately,  however,  it  does  even  more  than  this :  it  prob- 
ably prevents  many  interested  persons  from  signing  a  petition. 
One  of  the  great  difficulties  which  all  politicians  experience  is 
that  of  registration  and  "getting  out  the  votes."  If  it  is 
difficult  to  get  the  ordinary  voter,  who  presumably  is  inter- 
ested in  the  choice  of  the  president  or  governor,  to  come  to  the 
polls,  it  will  be  doubly  difficult  to  get  the  voter  to  come  to 
the  office  of  the  registrar  and  sign  petitions.  As  a  measure  to 
prevent  the  too  frequent  use  of  the  referendum  and  initiative 
the  Washington  law  is  excellent,  but  it  may  be  questioned 
whether  in  the  desire  to  prevent  fraud  the  state  has  not  seri- 
ously hampered  the  proper  use  of  the  initiative  and  referendum. 

It  is  perhaps  impossible  to  determine  the  proportion  of  Paid  soiici- 
fraudulent  signatures  upon  petitions.  It  is  true  that  the  pro-  signatures 
portion  of  fraudulent  signatures  is  greater  on  the  petitions 
which  have  been  circulated  by  paid  canvassers.  In  fact,  one 
writer  asserts  that  all  the  glaring  instances  of  fraud  have  been 
found  in  connection  with  the  paid  circulation  of  petitions  and 
that  no  serious  fraud  has  been  discovered  in  petitions  circu- 
lated by  voluntary  workers.  The  obvious  conclusion  would  be 
that  the  paid  circulation  of  petitions  should  be  forbidden. 
But  this  by  no  means  follows.  It  is  true  that  for  certain 
measures  in  which  the  public  is  vitally  interested  or  for  meas- 
ures which  appeal  to  certain  large  classes,  it  is  easy  to  find 
volunteer  canvassers,  but  for  other  measures  this  is  more  dif- 
ficult. It  must  be  remembered,  moreover,  that  the  proponents 
of  an  initiative  petition  are  just  at  the  beginning  of  their 
campaign  and  are  attempting  to  arouse  public  opinion  and  in- 
terest. W^hen  it  is  realized  that  the  signatures  of  5,  8,  10,  or 
even  25  per  cent  of  the  electorate  are  required  for  a  petition, 
the  difficulty  of  the  task  of  gathering  signatures  is  evident. 
It  perhaps  is  questionable  whether  at  that  stage  of  the  cam- 
paign it  is  desirable  or  necessary  to  burden  the  proponents  of 
a  measure  with  the  task  of  gathering  the  signatures  for  their 
petition  by  means  of  volunteers. 


114      STATE  AND  MUNICIPAL  GOVERNMENT 

substitu-  If  payment  be  allowed  for  the  circulation  of  petitions,  there 

fir°petition^  is  Httlc  guarantee  that  the  signatures  will  represent  any  intelli- 
gent opinion.  Therefore  it  has  been  suggested  that  instead  of 
requiring  the  proponents  of  a  measure  to  gather  signatures  at 
the  expense  of  from  three  to  ten  cents  a  name,  they  be  required 
to  pay  to  the  state  a  certain  fee.  One  author  suggests  that 
this  fee  be  made  large  enough  to  send  information  concerning 
the  measure  to  every  voter  of  the  state.  There  is  little  objec- 
tion to  this  proposal,  provided  the  premise  of  allowing  the 
payment  for  the  gathering  of  signatures  be  admitted.  Less  can 
be  said  for  the  proposal  if  payment  for  the  solicitation  of  sig- 
natures is  prohibited.  As  has  been  said,  one  of  the  purposes 
of  requiring  a  certain  percentage  of  signatures  to  a  petition 
is  to  prevent  loading  the  ballot  with  frivolous  proposals.  It 
may  well  be  questioned  whether  the  payment  of  a  fee  would 
prevent  this.  It  also  may  be  suggested  that  the  payment  of  a 
fee  might  prevent  an  enthusiastic  group  who  lacked  financial 
backing  from  getting  their  measure  on  the  ballot. 
Means  for  The  most  commou  provision  for  the  determination  of  the 
the^riidit?  validity  of  the  signature  is  the  requirement  that  the  circulator 
°*  ^^^  of  each  petition  shall  take  oath  that  the  signers  of  his  petition 

signature  ^  ,.    .  ,.^     , 

are  to  the  best  of  his  knowledge  and  belief  qualilied  voters  and 
have  been  duly  informed  of  the  contents  of  the  petition.  To 
conscientious  canvassers  this  requirement  may  mean  some- 
thing, but  it  is  to  be  feared  that  too  often  the  canvasser  pays 
little  attention  to  the  qualifications  of  the  persons  who  sign  the 
petition.  In  some  states  the  registrars  of  voters  are  required 
to  compare  the  signatures  on  the  petition  with  those  on  the 
lists  of  registered  voters.  To  facilitate  this  purpose  several 
states  prohibit  the  circulation  of  the  same  petitions  in  more 
than  one  district.  The  extreme  requirement  is  found  in  the 
Washington  law  already  described. 
Number  of  The  number  of  signatures  required  upon  a  petition  not  only 
reSdT  varies  in  different  states  but  differs  with  the  nature  of  the 
petition.^  An  initiative  petition  for  a  constitutional  amend- 
ment requires  the  signatures  of  5  per  cent  of  the  voters  in 

'  See   C.   O.   Gardner,   "  Problems;   of   Percentapes   in   Direct   Govern- 
ment," American  Polilkal  Science  Review,  Vol.  X,  pp.  500-515. 


INITIATIVE,  REFERENDUM,  AND  RECALL      115 

South  Dakota.    At  the  other  extreme  the  percentage  required  (i)Forcon- 

r     ,  rr-i  stitutional 

in  North  Dakota  is  25  per  cent  of  the  voters.  The  more  com-  amendment 
mon  practice,  if  it  be  possible  to  generalize,  would  fix  the  re- 
quirement at  from  10  to  15  per  cent.  In  sparsely  settled  states 
this  requirement  may  not  be  too  severe,  but  since  the  initiative 
and  referendum  are  spreading  into  the  more  populous  states 
the  percentage  demanded  must  necessarily  be  diminished  un- 
less the  burden  of  collecting  the  signatures  is  made  too  great. 
In  Massachusetts  a  constitutional  amendment  may  be  initiated 
by  a  petition  signed  by  25,000  qualified  voters.  But  in  Mas- 
sachusetts the  initiative  for  constitutional  amendments  is  not 
direct,  since  the  measure  is  referred  to  the  legislature. 

Ordinary  statutes  may  be  initiated  by  petitions  bearing  from  (2)  Forpeti- 
8  to  ID  per  cent  of  the  qualified  voters.^  In  Ohio  a  petition  statute^ 
if  signed  by  3  per  cent  of  the  voters  brings  the  bill  before  the 
general  assembly,  but  an  additional  3  per  cent  must  be  ob- 
tained in  order  to  bring  the  bill  before  the  people  in  case  the 
legislature  refuses  to  adopt  it.  Massachusetts  and  Maine  adopt 
a  fixed  number  of  signatures  instead  of  a  percentage:  Maine 
fixes  12,000;  Massachusetts  requires  20,000  signatures,  but 
5000  additional  are  required  to  put  the  petition  on  the  ballot 
in  case  the  legislature  refuses  to  act. 

Maine  demands  10,000  signatures  on  referendum  petitions.  (3)  For 

„    .  .  •,  .1  ^       c-  referendum 

Before  191 1  m  no  state  was  it  more  than  5  per  cent,    bince  petitions 
that  date,  however,  the  necessary  percentages  have  increased. 
Ohio  and  Washington  fix  the  number  at  6,  while  in  Nebraska, 
Nevada,  and  North  Dakota  it  is  10.   Like  Maine,  Massachu- 
setts requires  a  flat  number — 15,000. 

Most  of  the  states  originally  made  no  provisions  concerning  Distribu- 
the  distribution  of  the  residence  of  the  signers,  but  more  re-  residence 
cently  it  has  seemed  desirable  to  certain  states  to  call  for  a  °*  "'^ners 
wider  expression  of  opinion  on  petitions  than  was  ordinarily 
found.    Thus,  Montana  requires  that  at  least  two  fifths  of  the 
counties  of  the  state   must  be  represented   on   the  petition, 
Missouri  two  thirds  of  the  congressional  districts,  and  North 

iSee  Beard  and  Shultz,  Documents  of  the  Initiative,  Referendum  and 
Recall,  for  detailed  provisions  in  each  of  the  various  states;  see  also 
current  numbers  of  the  American  Year  Book. 


ii6     STATE  AND  MUNICIPAL  GOVERNIMENT 


Submission 
to  the  people 
or  the 
legislature 


The 
referendum 


Dakota,  lo  per  cent  of  the  voters  in  a  majority  of  the  counties ; 
while  for  the  constitutional  initiative  jSIassachusetts  demands 
that  not  more  than  one  fourth  of  the  certified  signatures  on 
any  petition  shall  be  those  of  the  registered  voters  of  any 
one  county. 

In  the  case  of  the  direct  initiative,  v>'here  the  formalities 
of  the  petition  have  been  fulfilled,  the  measure  is  referred 
directly  to  ihe  people.  The  same  is  true  with  regard  to  the 
petition  for  the  legislative  referendum.  In  the  case  of  the  in- 
direct initiative  the  petition  is  first  referred  to  the  legislature. 
If  the  legislature  enacts  the  law  proposed  by  the  petitioners 
there  is  no  reference  to  the  people.  If,  however,  the  legisla- 
ture refuses  to  enact  the  law  before  a  certain  date,  reference 
must  be  made  and  the  matter  becomes  a  referendum.  In  an 
increasing  number  of  states,  however,  the  legislature  is  given 
the  option  of  amending  the  proposed  measure  or  of  enacting  a 
competing  measure,  both  of  which  may  be  submitted  to  the 
people.  Without  attempting  to  discuss  the  merits  of  this  pro- 
cedure, it  is  obvious  that  different  instrumentalities  are  being 
employed :  the  submission  of  the  original  proposal  is  an  in- 
stance of  the  optional  referendum  and  the  submission  of  a  com- 
peting measure  by  the  legislature  is  an  example  of  the  use  of 
the  compulsory'  referendum.  This  method  would  have  much 
to  commend  it  if  the  proposals  on  the  ballots  were  not  already 
too  numerous  and  if  it  were  certain  that  the  voters  would  dis- 
criminate and  accept  or  reject  the  proposals  upon  their  merits. 

The  referendum  has  been  defined  as  a  device  by  which  the 
people  may  express  their  approval  or  disapproval  of  a  measure. 
As  has  been  seen,  this  measure  may  originate  in  an  initiative 
petition  and  be  either  a  statute  or  a  constitutional  amendment. 
The  referendum,  however,  may  also  be  employed  for  a  consti- 
tutional amendment  adopted  by  the  legislature  or  constitu- 
tional convention,  or  upon  a  law  passed  by  the  legislature  and 
referred  to  the  people  either  by  the  legislature  or  as  the  result 
of  a  petition.  The  procedure  for  the  initiative  and  referendum 
has  this  point  in  common — that  the  voters  are  asked  to  ex- 
press their  approval  directly  upon  the  measure  at  a  general  or 
special  election. 


INITIATIVE,  REFERENDUM,  AND  RECALL     117 

As  has  been  said,  in  the  use  of  the  compulsory  referendum  The  effect 
no  petition  is  necessary.  The  constitution  compels  the  people  tion^or'' 
to  express  their  approval  or  the  legislature  may  choose  to  ask  '■^^erendum 
the  voters  to  express  their  approval  upon  the  proposed  measure. 
Until  this  approval  is  given,  the  process  of  legislation  is  not 
complete.  Before  being  ratified  by  the  people  constitutional 
amendments  have  no  effect.  A  measure  passed  by  the  legisla- 
ture and  referred  to  the  voters  does-  not  become  a  law  until 
approved  by  them — popular  approval  is  the  final  step  in  the 
legislative  process  of  this  particular  kind.  This  is  not  true  in 
the  case  of  the  optional  referendum.  When  that  is  used  the 
legislative  process  is  complete  if  the  measure  has  been  passed 
by  the  legislature  and  signed  by  the  governor.  Normally  such 
an  act  is  a  law.  How,  then,  can  the  optional  referendum  be 
made  effective?  In  most  states  which  have  adopted  the  refer- 
endum a  provision  exists  declaring  that  no  law  passed  by  the 
legislature  shall  go  into  effect  until  a  certain  time  has  elapsed. 
This  delay  is  generally  sixty  or  ninety  days,  a  period  suf- 
ficiently long  for  the  people  to  become  cognizant  of  the  law 
and  for  interested  parties  to  circulate  a  petition  for  its  refer- 
ence to  the  electorate.  At  the  end  of  the  designated  period  the 
law  becomes  effective  unless  a  petition  for  a  referendum  has 
been  duly  signed  and  filed  with  the  proper  officials.^  The 
effect  of  such  a  petition  is  to  postpone  operation  of  the  law 
until  approved  by  the  electorate. 

It  is  obvious  that  occasions  may  arise  in  which  such  a  delay  Limitations 
would  be  disastrous  for  the  state.  To  subject  every  possible  referendum: 
law,  first  to  a  suspension  of  three  months  and  then  to  the 
possibility  of  further  postponement  until  the  next  regular  elec- 
tion, would  be  to  tie  the  hands  of  the  legislature  and  prevent 
its  taking  action  in  case  of  a  crisis.  To  avoid  this  situation 
the  state  constitutions  have  followed  different  methods. 

In  some  states  the  legislature  is  allowed  to  declare  that  an  (i)  Emer- 
emergency  exists.    Thus,  in  South  Dakota  the  legislature  may  feg°isfation 
declare  the  measure  an  emergency  measure  if  it  "be  necessary 
for  the  immediate  preservation  of  the  public  peace,  health,  or 

^The  legislature,  however,  may   declare   that  the  law  becomes  effec- 
tive at  some  date  even  later  than  that  designated  by  the  constitution. 


ii8      STATE  AND  MUNICIPAL  GOVERNMENT 


[Criticism] 


[Increased 

majority 

necessary 

for  an 

emergency 

declaration] 


safety,  support  of  the  state  government  or  its  existing  institu- 
tions." Similar  provisions  are  found  in  the  constitutions  of 
other  states.^  Missouri  leaves  the  matter  entirely  to  the  legis- 
lature, which  may  declare  any  act  an  emergency  act ;  Michigan 
makes  all  appropriation  acts  emergency  legislation ;  while  in 
the  other  states  provisions  similar  to  the  South  Dakota  clause 
are  found. 

The  difficulty  wuth  the  South  Dakota  provision  is,  first,  that 
there  is  no  substantial  agreement  or  standard  by  which  it 
may  be  determined  whether  a  measure  is  for  the  health,  safety, 
or  preservation  of  the  public  peace.  Thus,  in  April,  1920,  the 
Massachusetts  legislature  passed  under  the  emergency  clause 
a  bill  legalizing  amateur  Sunday  baseball.  By  the  utilization 
of  the  emergency  clause  it  was  possible  for  cities  accepting 
the  act  to  allow  baseball  teams  to  play  during  the  summer 
months  instead  of  postponing  the  season  until  192 1.  That 
this  was  a  proper  use  of  the  emergency  provision  few  will 
admit.  A  second  objection  is  that  even  if  there  were  a  con- 
sensus of  opinion  as  to  what  constitutes  an  emergency,  the 
legislature  might  abuse  this.  So  in  South  Dakota,  between  the 
years  1899  and  191 7,  the  legislature  passed  2573  acts,  and 
the  emergency  clause  was  attached  to  40  per  cent  of  these.  It 
should  be  added,  however,  that  in  19 15  the  supreme  court  of 
South  Dakota  decided  that  the  emergency  clause  cannot  defeat 
a  referendum  unless  an  actual  emergency  exists,  as  defined  by 
the  constitution.- 

Another  method  of  limiting  the  power  of  the  legislature  to 
declare  an  emergency  is  to  require  an  unusual  majority  in  the 
legislature  for  such  a  declaration.  In  practically  every  state 
adopting  the  referendum  a  majority  of  two  thirds  of  the  mem- 
bers elected  to  each  house  is  required  for  such  a  declaration. 
Arizona,  California,  and  Maine  allow  the  legislature  to  declare 
an  emergency  with  a  two-thirds  majority,  but  this  does  not 
prevent  the  referendum's  being  invoked.    A  law  passed  under 


iSee  Index  Digest  of  State  Constitutions,  iQiJ,  also  Bulletins  for  the 
Massachusetts  Constitutional  Convention,  Vol.  I,  pp.   204,  205. 

2  Bulletins  for  the  Massachusetts  Constitutional  Convention,  Vol.  I, 
pp.  203-204. 


INITIATIVE,  REFERENDUM,  AND  RECALL      119 

the  emergency  act  goes  into  effect  at  once,  although  it  may  be 
repealed  by  a  referendum  at  a  subsequent  election. 

All  the  states  except  certain  laws  from  the  operation  of  the  (2)  Excep- 
referendum.    In  general,  all  laws  for  the  immediate  preserva-  c'e°rtain 
tion  of  public  peace,  health,  or  safety  or  for  the  support  of  ^omThT 
the  state  government  and  institutions^  are  excluded  from  the  process  of 

°  the  refer- 

operation  of  the  referendum.  Massachusetts  goes  further  and  endum 
excludes  laws  relating  to  religion,  the  courts,  the  judges,  and 
also  laws  the  operation  of  which  is  restricted  to  a  single 
political  subdivision.-  In  addition,  Massachusetts,  in  common 
with  several  other  states,  excludes  appropriations  for  the  cur- 
rent or  ordinary  expenses.^  The  method  adopted  in  California 
has  much  to  commend  it.  Here  the  legislature  may  declare 
by  a  two-thirds  vote  of  the  members  elected  in  each  house 
that  a  measure  is  an  emergency  measure.  Nevertheless  this 
power  is  restricted  and  does  not  apply  to  measures  creating 
or  abolishing  an  office,  changing  any  salary,  granting  any 
franchise  or  special  privilege,  or  creating  any  vested  right 
or  privilege.  No  one  of  these  shall  be  declared  an  "urgency 
measure." 

In  all   states  adopting  the   initiative  and   referendum   the  submission 
measures  so  proposed  are  to  be  submitted  to  the  people  at  the  to  the 
next  regular  election  provided  such  occurs  not  less  than  thirty  ^^^'^^°'^^ 
or  sixty  days  after  the  filing  of  the  petition,  the  object  being 
to  allow  a  sufficient  time  in  which  the  voters  may  familiarize 
themselves    with    the    question.    In    California,    however,    the 
governor  may  order  a  special  election,  at  his  discretion ;  and  in 
Maine,  on  petition,  he  may  also  do  that,  provided  the  general 
election  does  not  take  place  within  six  months. 

Certain  advocates  of  direct  legislation  argue  that  the  meas-  considera- 
ures  should  always  be  considered  at  a  special  election,  where  measures  at 
their  merits  might  be  appreciated  apart  from  the  issues  of  an  eilctTo'n^ 
ordinary  campaign.    There  are  two  objections  to  this  proposal. 
In  the  first  place  it  is  to  be  doubted  whether  a  sufficiently  large 

iSee  Index  Digest  of  State  Constitutions,  pp.  781-782. 
2Article  XL VIII,  The  Referendum,  III,  Sect.  ii. 

3  Colorado,    Montana,    New    Mexico.    Michigan    excludes    from    the 
referendum  bills  to  meet  deficiencies  in  state  funds. 


120      STATE  AND  MUNICIPAL  GOVERNMENT 


Biennial 
elections 
and  direct 
legislation 


Special 
ballots 


proportion  of  the  electorate  would  ordinarily  attend  a  special 
election  at  which  only  referenda  propositions  were  considered. 
As  a  result  the  measures  would  be  adopted  or  rejected  by  a 
minority  of  the  voters/  On  the  other  hand,  if  the  state  re- 
quired a  rather  high  percentage  of  the  electorate  to  vote  at  the 
election,  the  measures  might  fail  because  of  nonattendance  by 
such  a  proportion  of  the  voters. 

There  are  almost  equal  objections  to  the  consideration  of 
measures  for  direct  legislation  at  a  general  election.  As  has 
been  seen,  the  ordinary  ballots  are  already  too  long  and  in 
many  states,  where  the  initiative  and  referendum  are  frequently 
invoked,  they  are  grossly  overloaded.  The  voter  is  confused; 
he  frequently  is  subject  to  what  may  be  called  "electoral 
fatigue"  and  thus  fails  to  mark  many  of  the  proposals  upon 
the  ballot.  On  the  other  hand,  when  he  is  confronted  by  a 
large  number  of  proposals  the  voter  may  unthinkingly  mark 
them  all  indiscriminately  Yes  or  No.  In  either  case  the  elec- 
tion does  not  give  a  fair  test  of  public  opinion. 

With  the  growth  of  the  movement  for  biennial  elections  and 
the  increasing  use  of  direct  legislation  a  new  problem  appears. 
The  laws  passed  by  the  legislature  may  be  suspended  for  two 
years  by  the  process  of  a  petition  for  a  referendum.  Because 
of  this  fact  the  temptation  to  attach  emergency  clauses  to  the 
ordinary  laws  is  increased.  There  are  instances,  indeed,  of 
improper  actions  by  particular  groups  in  putting  off  the  opera- 
tion of  a  law  by  invoking  the  referendum.  It  would  therefore 
seem  advisable  that  more  general  provisions  be  made  for 
holding  special  elections. 

To  obviate  the  difficulty  of  overloading  the  regular  ballot 
some  states — for  example,  Ohio — require  that  the  referenda 
propositions  shall  be  placed  upon  a  special  ballot.  This  has 
the  merit  of  relieving  the  general  ballot  and,  at  the  same  time, 
of  concentrating  the  attention  of  the  voter  upon  the  special 
provisions  on  which  he  is  voting. 

In  order  to  protect  the  electorate  from  being  overburdened 
with  deciding  questions  of  direct  legislation,  certain  states  limit 
the  number  of  propositions  which  may  appear  upon  the  ballot 

^See  pages  121-122. 


INITIATIVE,  REFERENDUM,  AND  RECALL      121 

at  any  one  time.^    Some  states  prohibit  placing  a  proposition  Limitations 
on  the  ballot  until  the  preceding  one  has  been  disposed  of.  and""™-^"^ 
This  is  particularly  true  with  regard  to  constitutional  amend-  '^"f"*'^  °^ 
ments.  Other  states,  among  them  Massachusetts  and  Nebraska,  submitted 
prohibit  the  submission  of  a  measure  which  has  been  submitted 
to  the  people  within  the  last  three  years. 

In   general,    two    methods   are    used    for   determining    the  vote  neces- 
vote  necessary  for  adoption  of  a  measure.    All  that  is  neces-  adoption: 
sary  in  some  states  is  a  majority  of  the  votes  cast  upon  the  ■ty'to't^ng'^' 
proposition.-     Other   states   require   a    favorable    majority    of  thereon 
those  voting  at  the  election.    The  first  requirement  is  hardly 
sufficient ;  experience  shows  that  the  proposals  for  direct  legis- 
lation attract  a  much  smaller  vote  than  the  vote  for  the  election 
of  officers.    Still,  as  Professor  Holcombe  has  pointed  out,^  a 
distinction  must  be  made  between  the  compulsory  and   the 
optional  referendum.    A  far  larger  proportion  of  the  electorate 
expresses  its  opinion  under  the  optional  than  under  the  com- 
pulsory   referendum.     This    requirement    frequently    prevents  f2)Amajor- 
the  adoption  of  measures  for  which  a  substantial  number  of  theTiectfon 
people  have  voted.    Thus,  in  Arkansas  in  1916  the  total  vote 
for  the  candidates  at  the  election  was  167,505;  "Good  Road 
Tax"  measure  was  approved  by  82,503  to  66,150, — a  majority 
of  16,353, — yet  it  failed  to  pass  because  the  favoring  vote  was 
not  a  majority  of  those  who  voted  at  the  election.* 

A  variant  of  the  provision  requiring  simply  a  majority  of  (3)  a  ma- 

those  voting  thereon  is  found  in  the  Massachusetts  amendment  those  voting 

of  1918,^  where  a  constitutional  amendment  proposed  by  the  ^^0^^^°^ 

initiative  requires  a   majority   of   those   voting   thereon,   pro-  ^^^g^'"g_ 

vided  such  is  ^0  per  cent  of  the  total  number  of  ballots  cast  quirements 
.  Z,  ,  r  -11.  ^  are  fulfilled 

at  the  election.    The  same  amendment^  provides  that  an  act 

1  Bulletins  for  the  Massachusetts  Constitutional  Convention,  Vol.  I, 
pp.  217-218. 

-C.  O.  Gardner,  "Problems  of  Percentages  in  Direct  Government," 
in  American  Political  Science  Review,  Vol.  X,  pp.  500-515. 

^State  Government  in  the  United  States,  pp.  406-407,  412. 

4  Bulletins  for  the  Massachusetts  Constitutional  Convention,  Vol.  I, 
p.  216. 

5  Article  XLVIII,  The  Initiative,  IV,  Sect.  v. 

6  The  Referendum,  III,  Sect.  iii. 


122      STATE  AND  MUNICIPAL  GOVERNMENT 

of  the  legislature  shall  not  be  rejected  if  the  negative  vote  is 
less  than  30  per  cent  of  the  total  number  of  ballots  cast  at 
the  election.  A  similar  provision  requiring  a  negative  vote 
of  40  per  cent  is  found  in  the  constitution  of  New  Mexico. 
There  is  much  to  be  said  in  favor  of  this  method  of  determin- 
ing the  majority  necessary  for  adoption  or  rejection  of  a 
measure.  It  avoids  the  difficult  requirement  of  a  majority  vot- 
ing at  the  election,  but  at  the  same  time  insures  a  more  sub- 
stantial number  of  votes  than  the  requirement  of  a  majority  of 
those  voting  upon  the  measure. 
Veto  of  the  After  a  measure  has  been  approved  at  the  popular  election 
gov  nior  ^^^  question  arises  whether  this  is  subject  to  the  executive 
veto.  Fifteen  states  answer  this  in  the  negative.  If  the  theory 
on  which  the  initiative  and  referendum  are  based  is  accepted, 
it  is  difficult  to  see  why  the  executive  should  be  allowed  to 
thwart  such  an  expression  of  the  popular  will.  No  state  ever 
allowed  the  governor  to  veto  a  constitutional  amendment 
adopted  by  popular  vote,  and  it  seems  as  if  the  referendum 
as  applied  to  statutes  should  have  an  equal  protection  against 
executive  interference.  The  control  of  the  governor  through 
his  veto  is  political ;  the  action  of  the  popular  referendum  is  a 
political  action  of  an  even  more  decisive  sort.  Statutes  adopted 
by  the  referendum  are  of  course  open  to  judicial  interpretation 
and  may  be  declared  unconstitutional  by  the  court. 
Legislative  There  is  little  consistency  among  the  states  in  dealing  with 
orTepeai^"  the  matter  of  the  appropriateness  of  legislative  amendment  to 
leglsiauon  ^^^^^^  legislation.  Oklahoma  declares  that  the  initiative  and 
referendum  shall  not  deprive  the  legislature  of  the  right  to 
repeal  or  pass  any  law.  At  the  other  extreme,  Arizona  ex- 
empts initiative  or  referendum  measures,  approved  by  the 
electors,  from  the  operation  of  the  executive  veto  and  legisla- 
tive amendment.  Washington  gives  a  two  years'  immunity  to 
acts  approved  by  the  majority  of  the  electors  voting  thereon, 
and  Nevada  three  years  to  measures  proposed  by  the  initiative. 
California  and  Michigan  provide  that  no  law  adopted  under 
the  initiative  may  be  amended.' 

'In  Michigan   no  law  so  adopted  may  be  repealed   (Bulletins  for  the 
Massachusetts  Constitutional  Convention,  Vol.  I,  pp.  196,  217-218). 


INITIATIVE,  REFERENDUM,  AND  RECALL     123 

The  effect  of  direct  legislation  upon  the  legislature  and  its  The  effect 
power  will  be  considered  in  a  later  chapter.  In  the  present  "nitfative 
chapter  the  topics  which  should  be  discussed  deal  with  the  ^°^  ^^^^^' 

'^  ^  endum: 

electorate,  the  political  parties,  and  the  ballot. 

One  of  the  theoretical  justifications  for  direct  legislation  is  d)  upon  the 
its  effect  upon  the  electorate.  It  is  held  to  have  an  educative 
value,  and  it  is  claimed  that  if  the  people  have  the  opportunity 
to  express  directly  their  opinions  upon  measures,  they  will 
inform  themselves  concerning  the  merits  of  these  measures 
and  will  take  an  intelligent  interest  in  the  government.  It  is 
claimed,  also,  that  much  misgovernment  is  due  to  the  listless- 
ness  and  ignorance  of  the  electorate.  Once  give  the  people,  it 
is  said,  the  opportunity  to  act  directly  and  their  interest  will 
prevent  many  of  the  unfortunate  results  of  representative 
government.  These  assertions  rest  upon  the  theory  that  the 
people  will  take  interest  in  the  initiative  and  referendum.  This 
is  directly  denied  by  some,  and  experience  in  some  states 
supports  this  denial.  Before  accepting  it  in  full,  however,  an 
analysis  should  be  made  of  the  apparent  interest  expressed  by 
the  people  on  the  various  kinds  of  referenda  and  the  character 
of  the  measures  submitted  to  them.  It  has  been  shown  ^  that 
much  more  interest  is  excited  by  the  optional  than  by  the  com- 
pulsory referendum.  The  poor  record  which  many  of  the 
Eastern  states  make  has  been  due  largely  to  the  fact  that  in 
the  past  the  electorate  had  experienced  only  the  compulsory 
referendum.  The  only  measures  which  were  submitted  to  it 
were  constitutional  amendments  or  measures  on  which  the 
legislature  did  not  care  to  express  a  definite  opinion.  In  states 
where  the  optional  referendum  exists  much  more  interest  is 
aroused.  The  interest,  moreover,  varies  with  the  character  of 
measures  which  are  submitted  to  the  people.  No  lack  of  in- 
terest is  found  on  large  measures,  such  as  licensing  the  sale  of 
intoxicants.  In  the  same  manner  the  people  are  eager  to 
express  their  opinion  about  appropriations,  and  not  always 
wisely  as  regards  salaries  and  compensations.  On  the  whole, 
it  may  be  affirmed  safely  that  in  those  states  where  the  optional 
referendum  has  been  in  use  for  a  decade  the  electorate  is 

lA.  N.  Holcombe,  State  Government  in  the  United  States,  pp.  404-407. 


124      STATE  AND  MUNICIPAL  GOVERNMENT 


(2)  On 

political 

parties 


(3)  On  the 
machine 


keenly  interested  in  the  problems  presented  to  it.  That  it 
always  decides  wisely  is,  of  course,  a  question  of  opinion,  but 
that  it  generally  obtains  its  desires  is  a  matter  beyond  dispute. 
The  danger  lies  in  the  possibility  that  the  electorate,  conscious 
of  its  power,  will  use  the  initiative  and  referendum  too  fre- 
quently, and  in  some  states  this  has  doubtless  happened.  In 
justification,  however,  it  should  be  said  that  in  those  states 
where  the  use  of  the  referendum  or  the  initiative  has  ap- 
parently been  excessive  the  legislatures  were  not  truly  repre- 
sentative of  the  people,  but  were  too  often  controlled  by  groups 
or  machines.  Direct  legislation  certainly  gave  the  people  of 
California  the  control  of  their  state  government.  As  the 
novelty  of  the  initiative  and  referendum  has  worn  off,  its  use 
for  frivolous  or  novel  matters  has  declined.  An  exception  might 
be  found  in  South  Dakota,  where  the  Nonpartisan  League, 
through  the  initiative  and  referendum,  succeeded  in  putting 
into  effect  some  of  the  radical  features  of  its  program. 

Theoretically,  the  effect  of  direct  legislation  on  political 
parties  should  be  bad.  A  political  party,  filling  its  proper  func- 
tion, ought  to  be  held  responsible  for  the  legislation  it  supports. 
Anything  which  weakens  this  responsibility  and  allows  the 
political  party  to  shift  its  burden  directly  to  the  unorganized 
electorate  is  unfortunate.  Practically,  however,  political  par- 
ties are  not  very  greatly  concerned  over  general  measures  of 
state  legislation.  As  will  be  seen,  there  is  less  party  voting  in 
state  legislatures  than  in  Congress,  because  in  state  politics 
political  parties  are  more  concerned  over  the  election  or  selec- 
tion of  officers  and  the  appropriation  of  money  than  over  the 
general  course  of  legislation.  Exceptions,  of  course,  are  numer- 
ous. Since,  then,  political  parties  too  frequently  escape  the 
responsibility  for  legislation,  the  initiative  and  referendum  can- 
not be  held  responsible  for  any  of  their  weaknesses.  Direct 
initiative  and  legislative  referendum  positively  enable  the  elec- 
torate to  obtain  the  enactment  of  measures  which  political 
parties  might  refuse. 

The  initiative  and  referendum  give  the  electorate  the  oppor- 
tunity to  break  the  power  of  the  machine.  As  has  been  seen, 
the  majority  of  the  electorate  votes  a  partisan  ticket,  and  in 


INITIATIVE,  REFERENDUM,  AND  RECALL      125 

that  lies  the  strength  of  the  machine.  If  the  machine  controls 
the  individual  legislators,  as  it  frequently  does,  there  is  little 
hope  that  the  electorate  can  obtain  the  measures  it  desires 
in  opposition  to  the  machine.  The  initiative  and  referendum 
are  nonpartisan  agencies.  The  measures  appear  in  no  party 
column,  with  no  party  symbol,  and  voting  on  them  can  hardly 
be  controlled.  The  machine  is  less  able  to  manage  its  adher- 
ents or  the  mass  of  the  electorate  on  these  measures  than  it  is 
in  the  choice  of  officers.  In  more  than  one  state  the  initiative 
and  referendum  have  been  successfully  invoked  to  break  the 
power  of  the  machine. 

The  effect  of  the  initiative  and  referendum  on  the  ballot  is  U)  on  the 
unfortunate.  In  almost  every  state  the  ballots  are  already  too 
long  and  make  too  great  a  demand  upon  the  electorate.  Very 
often  the  very  size  of  the  ballot  causes  the  voter  to  neglect  to 
express  an  opinion  upon  the  referenda.  This  may  be  the  ex- 
planation of  the  smallness  of  the  vote  in  some  states.  One 
method  of  overcoming  this  evil  is  to  provide  a  special  ballot 
for  the  referenda ;  another  is  to  submit  the  referenda  to  the 
voters  at  a  special  election.  The  disadvantages  of  the  latter 
plan  have  already  been  discussed ;  the  plan  of  a  special  ballot 
has  the  advantage  of  attracting  the  voter's  attention  to  the 
proposals  and  of  shortening  the  ballot  for  the  choice  of  officers, 
but  it  has  the  disadvantage  of  complicating  the  actual  process 
of  casting  and  counting  the  ballots. 

In  spite  of  all  criticism,  both  of  the  theory  of  direct  legisla-  summary 
tion  and  of  the  details  of  any  particular  system,  the  initiative 
and  referendum  have  probably  become  a  permanent  part  of  the 
political  machinery  of  the  states.  No  state  which  has  adopted 
these  instruments  has  ever  abolished  them,  and  more  and  more 
states  are  adopting  them.  The  system,  in  order  to  work  sat- 
isfactorily, should  provide  (i)  that  the  measures  should  be 
framed  fairly  and  without  ambiguity;  (2)  that  they  should  be 
sponsored  by  an  interested  group  of  the  electorate;  (3)  that 
they  should  be  adopted  only  upon  the  approval  not  of  a  mere 
majority  of  those  voting  thereon,  but  of  a  considerable  propor- 
tion of  the  electorate;  (4)  that  the  decisions  of  the  initiative 
and  referendum  should  not  be  subject  to  executive  veto.    The 


126      STATE  AND  MUNICIPAL  GOVERNMENT 

preceding  pages  have  attempted  to  show  how  these  principles 
have  been  estabhshed  in  different  states.  The  variations  de- 
scribed show  that  there  is  no  consensus  of  opinion  as  to  the 
best  method  of  attaining  the  desired  ends. 


The  recall 


How  the 
recall  is 
invoked 


Number  of 
signatures 
necessary 
to  invoke 
the  recall 


The  Recall 

The  recall  is  a  device  by  which  a  public  officer  who  is 
unsatisfactory  to  the  people  who  elected  him  may  be  removed 
from  office  before  the  expiration  of  his  term.^  The  recall  is 
not  new  in  the  constitutional  history  of  the  United  States — it 
was  contained  in  the  Articles  of  Confederation.  In  its  modern 
form  it  was  first  introduced  into  municipal  government  in  the 
charter  of  Los  Angeles  in  1903,  and  is  now  found  in  an  increas- 
ing number  of  city  charters.-  As  applied  to  state  government, 
it  made  its  initial  appearance  in  Oregon  in  1908  and  is  found 
in  nine  other  states  in  some  form  or  other. ^ 

Like  the  initiative  and  referendum,  the  recall  originates  with 
a  petition.  This  petition,  which  is  addressed  to  the  governor, 
may,  as  the  Arizona  form  provides,  bluntly  make  a  demand : 
"Sir:  We,  the  qualified  electors  of  the  electoral  district  from 

which was  elected,  demand  his  recall."    Or  it  may, 

in  more  suave  terms,  request  the  governor  to  proclaim  a  special 
election  for  voting  upon  the  question  of  whether  or  not  an 
officer  should  be  recalled. 

Eight  of  the  states  require  that  the  petition  should  be  signed 
by  25  per  cent,  one  by  10  per  cent,'  and  one  by  12  per  cent.^ 
There  is  no  uniformity,  however,  as  to  what  this  percentage 
should  be  reckoned  upon.  Kansas  takes  as  a  base  the  electors 
of  the  state ;  Michigan,  the  number  of  votes  cast  for  governor ; 


1  Sec  Bulletins  for  the  Massachusetts  Constitutional  Convention, 
Vol.  II,  pp.  287-301.  This  contains  a  brief  bibliof;raphy.  As  in  the  case 
of  the  initiative  and  referendum  there  is  a  large  amount  of  literature 
on  this  subject.  Attention  should  be  directed  to  W.  B.  Munro  (ed.), 
The  Initiative,  Referendum,  and  Recall. 

-See  pages  408,  439,  448. 

•■'Arizona,  California,  Colorado,  Idalio,  Kansas,  Louisiana,  Michigan, 
Nevada,  Oregon,  Washington.    American   Year   Book,    1919. 

■•Kansas.  f*  California. 


INITIATIVE,  REFERENDUM,  AND  RECALL      127 

Oregon  and  Idaho,  the  number  of  votes  cast  for  all  candidates 
for  justice  of  the  supreme  court  in  the  last  preceding  election; 
four  states  take  the  number  of  votes  cast  at  the  preceding 
election  for  the  office  held  by  the  incumbent  whose  removal  is 
desired.    This  is  the  most  logical  base  to  assume. 

If  a  sufficient  number  of  names  have  been  secured  for  the  operation 
petition  the  officer  must  be  informed  that  a  recall  has  been 
initiated  against  him.  At  the  election  the  petitioners  are  re- 
quired to  state  the  reasons  for  demanding  the  recall  in  a  para- 
graph of  one  hundred  or  two  hundred  words  in  length,  and 
the  incumbent  may  be  given  a  similar  privilege  of  defense. 
The  latter,  however,  has  another  course  open  to  him — he  may 
voluntarily  resign  his  office  rather  than  stand  the  trial  of  an 
election.  In  this  case  the  recall  election  amounts  to  nothing 
more  than  an  election  to  fill  a  vacancy.  California  submits  to 
the  voters,  on  the  same  ballot  with  the  name  of  the  new  candi- 
date for  the  office  under  dispute,  the  question.  Shall  the  in- 
cumbent be  recalled?  If  a  majority  of  those  voting  are  in 
favor  of  this  question,  the  votes  for  the  candidate  or  candidates 
for  the  office  which  the  incumbent  occupies  are  counted  and 
the  candidate  receiving  the  plurality  is  declared  elected. 

Most  of  the  states  which  have  introduced  the  recall  extend  what 
it  to  every  elective  officer.    Idaho,  Louisiana,  ISIichigan,  and  be  recalled^ 
Washington  except   judges,  while   Arizona  provides   for  ''an 
advisory    recall    for    United    States   officers,    whether    elected 
or  appointed." 

By  statute  Arizona  allows  candidates  for  federal  offices  the  The 
privilege  of  signing  one  of  two  statements.    The  first  statement  recan°oT 

reads,  "If  elected  to  the  office  of  ,  I  shall  deem  myself  ^^^H^l 

responsible  to  the  people,  and  under  obligation  to  them  to 
resign  immediately,  if  so  requested  by  an  advisory  vote." 
The  second  statement  declares  that  the  candidate  shall  not 
deem  himself  obliged  so  to  resign.  In  the  preparation  of  the 
official  ballot  the  secretary  of  state  is  directed  to  place  under 
the  candidate's  name,  on  the  ballot,  "Pledged  to  advisory 
recall,"  or  "Refuses  to  pledge  to  advisory  recall,"  or  "Silent  as 
to  advisory  recall."  A  similar  device  is  provided  for  recom- 
mendations to  the  president  for  appointive  federal  officers. 


128      STATE  AND  MUNICIPAL  GOVERNMENT 

Frequency  Until  1 92 1  the  recall  was  not  used  for  any  state  officer 
of  the  recall  chosen  by  the  electorate  at  large.  Its  ordinary  use  was  in 
municipal  affairs  where  mayors,  attorneys,  and  municipal  judges 
were  subject  to  recall  petitions.  The  effect  of  the  recall  upon 
the  judiciary  and  the  use  of  the  recall  in  commission  and  city- 
manager  governments  will  be  discussed  in  subsequent  chapters. 
The  recall  In  1921,  however,  a  state-wide  recall  was  attempted  in  North 
Dakota  Dakota.  This  was  invoked  by  the  opponents  of  the  Non- 
partisan League,  which  had  been  successful  at  the  previous 
election.  In  carrying  out  their  program  the  Non-Partisan 
League  extended  the  functions  of  state  activities  into  fields 
which  were  formerly  preserved  for  private  enterprise.  Particu- 
larly was  this  true  in  banking.  The  accusation  was  brought 
against  some  of  the  officials  chosen  by  the  Non-Partisan  League 
that  they  were  socialistic  and  the  financial  success  of  some  of 
their  enterprises  was  dubious.  Consequently  the  opponents  of 
the  league  successfully  invoked  the  recall  against  the  governor, 
attorney-general,  and  commissioner  of  agriculture  and  labor, 
and  succeeded  in  electing  their  candidates. 


PART  III 

ORGANIZATION  AND  FUNCTIONS  OF 
STATE  GOVERNMENT 


CHAPTER  VII 

THE  STATE  GOVERNOR 
The  executive  department  in  state  governments  is  decen-  The 

executive 

tralized.  This  is  in  sharp  contrast  to  the  executive  depart-  department 
ment  of  the  national  government  and  the  usual  condition  in 
municipal  government.  In  part  this  may  be  explained  on  his- 
torical grounds.  When  the  American  states  achieved  their 
independence  the  reaction  against  the  tyranny  of  Great  Britain, 
which,  as  they  knew  it,  was  a  tyranny  of  the  executive,  led 
them  to  establish  legislative  supremacy.  The  provincial  gov- 
ernor^ in  the  American  colonies  was  the  instrument  of  British 
oppression.  The  colonial  assemblies  had  been  the  means  by 
which  British  oppression  had  been  resisted.  Thus  the  early 
constitutions  of  every  American  state  exalted  the  power  of  the 
legislature  and  limited  the  executive  department.  Roughly  it 
may  be  said  that  until  the  first  third  of  the  nineteenth  century 
legislative  supremacy  was  recognized  in  most  of  the  American 
states.  Three  influences  brought  about  a  change  of  policy. 
In  the  first  place,  the  state  legislatures  proved  inefficient  and 
in  some  instances  corrupt.  In  the  second  place,  with  the 
movement  toward  democracy  and  the  election  of  the  governor 
by  the  people,  that  official  came  to  represent  the  entire  electo- 
rate of  the  state  far  better  than  a  group  of  representatives,  each 
chosen  from  small  districts  and  too  often  selfishly  attached  to 
local  interests.  A  third  influence  was  the  extension  of  the 
functions  of  the  state  into  new  fields,  which  demanded  the 
creation  of  new  executive  offices.  This  began  at  the  time 
when  the  democratic  movement  was  strong  and  the  distrust 
of  the  legislature  almost  equally  strong.  As  a  result  many  of 
the  new  executive  officers  were  chosen  directly  by  the  people. 

iThe  most  exhaustive  treatment  of  the  provincial  governor  is  in 
E.  B.  Greene's  "The  Provincial  Governor  in  the  English  Colonies  of 
North  America." 

131 


132      STATE  AND  MUNICIPAL  GOVERNMENT 


The 

provincial 

governor 


The  state 
governor 


The  combination  of  these  three  tendencies  gave  to  most  Ameri- 
can states  at  the  end  of  the  nineteenth  century  a  plural  execu- 
tive department  composed  of  numerous  officials,  many  of 
whom,  being  directly  chosen  by  the  electorate,  were  on  a  par 
as  far  as  authority  went,  and  responsible  not  to  any  one 
executive  official  but  to  the  electorate.  At  the  close  of  the 
nineteenth  century  came  a  movement  to  integrate  the  execu- 
tive department  and  to  vest  in  the  governor  the  appointment 
and  thus  the  direction  of  a  larger  number  of  officials.  The  move- 
ment was  undertaken  in  the  desire  to  increase  efficiency  and 
was  perhaps  hastened  by  the  success  which  had  been  brought 
about  by  concentration  of  executive  power  in  municipal  affairs. 
The  state  governorship  was  the  first  executive  position  created 
by  the  states  even  before  they  actually  achieved  their  inde- 
pendence. They  had  in  mind  an  office  which  they  desired 
not  to  perpetuate  but  to  avoid.  The  provincial  governor  had 
held  office  for  no  fixed  term,  but  served  during  pleasure.^  He 
had  had  the  power  to  summon,  prorogue,  and  dissolve  the 
colonial  legislatures.  He  had  had  the  absolute  power  of  veto 
and  a  large  appointing  power.  He  had  been  commander  in 
chief  of  the  colonial  militia,  and  in  many  colonies  had  exercised 
equity  and  admiralty  jurisdiction.    He  and  his  council,  which, 

< 

as  a  rule,  he  nominated,  had  been  the  highest  court  of  appeal 
in  the  colonies.'-  His  powers  were  so  wide  and  his  influence 
so  great  that  had  Great  Britain  appointed  abler  men  as  provin- 
cial governors  and  supported  them  more  consistently,  the  task 
of  achieving  independence  would  have  been  far  more  difficult. 
The  early  state  constitutions  generally  provided  that  the 
governor  should  be  chosen  by  the  legislature.-'   This,  however, 


iln  Connecticut  and  Rhode  Island  the  governor  was  chosen  by  the  leg- 
islature and  had  little  power.  In  the  proprietary  colonies  he  was  appointed 
by  the  proprietor. 

-  In  Connecticut,  Massachusetts,  and  Rhode  Island  the  council  was  elected. 

"J.  M.  Mathews,  Principles  of  American  State  Administration.  Chaps, 
ii-v  deal  with  the  state  governor  and  his  powers.  See  also  J.  H.  Finl^y 
and  J.  F.  Sanderson,  The  American  Executive  and  Executive  Methods, 
chaps,  iv-xii ;  also  A.  N.  Holcombe,  State  Government  in  the  United 
Slates,  chap,  x,  and  J.  A.  Fairlie,  "The  State  Governor,"  in  Michigan 
Law  Review,  Vol.  X,  pp.  370-383,  458-475- 


THE  STATE  GOVERNOR  133 

tended  to  make  him  a  mere  agent  of  the  legislature  rather  Election 
than  an  independent  executive,  and  violated  that  principle  of 
separation  of  departments  which  was  more  or  less  consciously 
held  by  the  states.  Today  the  governor  in  forty-seven  states 
is  chosen  by  direct  popular  vote.^  It  should  be  remembered 
that  although  elected  by  the  people  the  choice  of  the  governor 
is  the  result  of  action  by  the  party  system.  He  is  nominated 
in  conventions  or  direct  primaries  and  elected  at  the  polls. 
In  most  states  a  plurality  of  votes  is  sufficient  for  election. 
In  three  states  a  majority  is  required.^  In  case  no  candidate 
receives  this  majority  the  election  is  thrown  into  the  legisla- 
ture. In  all  states  where  two  candidates  receive  an  equal 
number  of  votes  the  legislature  by  different  processes  selects 
the  governor. 

In  New  Jersey  the  governor  is  elected  for  three  years.  In  Term 
twenty-five  states,  including  all  the  New  England  states, 
New  York,  Ohio,  Wisconsin,  Kansas,  and  New  Mexico,  the 
term  is  two  years.  In  twenty-two  states,  including  Pennsyl- 
vania, most  of  the  Southern  states,  Indiana,  Illinois,  and  the 
Pacific  states,  the  term  is  four  years.  The  general  tendency 
has  been  to  increase  the  length  of  the  governor's  service  in 
order  that  he  may  carry  out  the  policies  for  which  he  stood 
on  election. 

All  states  provide  for  the  removal  of  the  governor  by  im-  Removal: 
peachment.^    This,  according  to  the  ruling  of  the  New  York  J^g^^f^;^^'^; 
court,  is  a  judicial  process.    The  governor  may  be  impeached 
by  the  lower  house  of  the  legislature  and  tried  by  the  senate. 
In  general,  it  requires  a  vote  of  two  thirds  of  the  senate  to 
convict  and  remove  the  governor. 

In  ten  states  the  governor  may  be  removed  by  a  recall.*  (2)  By 
Should  this  happen  the  candidate  chosen  by  the  electors  fills  ^ 
out  the  unexpired  term  of  the  governor. 

iJn  Mississippi  he  is  chosen  by  the  majority  of  the  popular  and  the 
electoral  vote.  The  electoral  vote  is  obtained  by  giving  to  the  candi- 
date receiving  the  highest  vote  in  each  county  as  many  electoral  votes 
as  the  county  has  representatives.  Constitution  of  Mississippi,  Article  V, 
Sect.  140. 

2  Georgia,  Mississippi,  Vermont.  3  Except  Oregon. 

*See  page  126. 


134      STATE  AND  MUNICIPAL  GOVERNMENT 
Filling  of  About   two   thirds  of  the  states  provide   for  a  lieutenant 


vacancies 


governor  chosen  in  the  same  way  and   thus  generally  from 
the  same  party  as  the  governor.    In  some  states  he  has  few 
functions  other  than  those  of  an  heir  apparent ;   in  others  he 
may  preside  over  the  senate ;    and  he   frequently  serves   ex 
officio  on  various  commissions.^    In  case  of  the  death,  resigna- 
tion, or  removal  of  the  governor  by  impeachment  the  lieutenant 
governor   succeeds   to   office   and    the   same   party  policy   is 
continued.    Where  the  governor,  however,  is  removed  by  recall 
(up  to  192 1  no  governor  has  been  so  removed),  a  new  governor 
is  elected  for  the  remainder  of  the  term, 
compensa-        The  Salaries  of  the  governors  are  small.  Illinois  pays  $12,000 ; 
governor       California,  Massachusetts,  New  York,  New  Jersey,  Ohio,  and 
Pennsylvania,  Sio,ooo;  Nebraska,  $7500.  The  lowest  salary  is 
$2500.    Although  the  powers  and  governmental   functions  of 
the  governor  are  far  greater,  they  are  not  so  well  paid  as  the 
mayors  of  large  cities. 
The  powers       The  powers  of  the  governor  may  be  classified  as  legal  and  polit- 
governor       ical.    The  legal  powers  include  those  which  are  granted  directly 
by  the  constitution,  those  which  are  inherent  in  the  executive 
office,  and  those  which  are  granted  him  by  acts  of  the  legisla- 
ture.   The  political  powers  of  the  governor  have  their  basis  in 
the  political  system  of  the  state — in  the  fact  that  the  governor 
is  the  choice  of  a  party  system  and  frequently  the  most  in- 
fluential person  in  the  party.    The  governor  may  use  many  of 
his  constitutional  powers  for  political  purposes,  and  very  fre- 
quently he  uses  his  political  influence  for  purposes  not  contem- 
plated by  the  constitution.     Particularly  is   this   true  in  his 
dealings  with  the  legislature.    The  powers  of  the  governor  may 
be  further  classified  as  legislative  and  executive.    The  legisla- 
tive functions  include  the  right  to  submit  messages  and  the 
power  of  veto ;    the   executive   functions   cover   the    field   of 
appointment,  pardon,  supervision  of  administration,  and   the 
military  power. 
The  legisia-       In  the  early  constitutions  of  the  states  the  governors  had 
^ive^power    pj.,j(,^jj.y|]y  j^^  legislative  power.    Starting  from  what  was  almost 
governor:     a  negation  of  such  power,  the  governor  has  become  virtually 
1  See  American  Political  Science  Review,  Vol.  XI,  p.  88. 


THE  STATE  GOVERNOR  135 


a  third  house  of  the  legislature.  He  has  done  this  through 
the  addition  of  constitutional  powers  and  through  the  use  of 
his  political  power. 

The  regular  sessions  of  the  legislature  are  fixed  by  the  con-  d)  Power 
stitution.    But  with  the  decreasing  frequency  of  such  regular  the^'ie^^ia- 
sessions  has  come  the  necessity  of  summoning  special  sessions.  *"'''' 
This  power  is  vested  in  the  governor.    An  interesting  question 
arises  concerning  the  power  of  the  legislature  after  it  is  sum- 
moned in  a  special  session.    In  some  states  the  legislature  is 
prohibited  from  taking  action  on  any  measures  except  those 
designated  by  the  governor  in  the  proclamation  summoning  a 
special  session.    This  prohibition  has  at  times  compelled  the 
governor  to  summon  another  special  session,  and  in  19 12  there 
were  in  Illinois  two  special  sessions  of  the  legislature  simul- 
taneously in  session.^    A  better  practice  is  to  limit  the  legisla- 
ture to  action  on  such  matters  as  shall  be  contained  in  the 
governor's  call  or  submitted  to  it  by  him  during  the  session. - 

The   provincial    governor    had    the    power    to    dissolve    the  (2)  Adjoum- 
colonial   assemblies   and   to   order   a   new   election.    No   state  prorogation, 
governor  may  do   this.    The   time   of  the   assembling   of   the  <i'ssoiutioii 
legislature  is  fixed  by  the  state  constitution  and  in  some  states 
the  length  of  the  sessions  also.    Where  this  duration  is  not  so 
determined,  the  legislature  and  not  the  governor  decides  as  to 
adjournment.    In  some  states,  in  case  of  emergency,  like  an 
epidemic  or  an  uprising,  the  governor  may  convene  the  legisla- 
ture at  some  other  place  than  the  state  capital,  but  this  power 
can  be  exercised  only  in  the  recess  of  the  legislature.    When 
the  legislature  assembles  the  governor's  action  in  proroguing 
it  to  another  place  may  be  revised. 

Logically,   the   governor's   legislative   iniluence   begins  with  (3)  intro- 
his  message.    In  every  state  he  has  power  to  submit  by  mes-  o"meas- 
sage  matters  for  the  consideration  of  the  legislature.  Generally  ^^^^'  ^^^, 

°  o  ,    governor's 

these  messages  are  in  the  nature  of   recommendations,   and  message 

^In  1Q13  a  special  session  of  the  New  York  legislature  impeached 
Governor  Sulzer.  This,  the  New  York,  court  held,  was  a  judicial,  not  a 
legislative,  performance. 

-This  is  the  practice  in  Florida,  Mississippi,  Montana,  Nevada,  and 
Utah. 


,  136      STATE  AND  MUNICIPAL  GOVERNMENT 

rarely  does  the  governor  by  a  message  introduce  an  "adminis- 
tration bill."  There  is,  however,  nothing  to  prevent  him  from 
so  doing,  and  in  such  case  that  portion  of  his  message  would 
be  referred  to  the  proper  committee.  The  governor's  messages, 
moreover,  may  contain  exhortations  to  the  legislature  urging 
them  to  follow  a  certain  course  or  adopt  a  specified  measure. 
The  message,  moreover,  may  constitute  a  threat  that  a  meas- 
ure, if  passed  in  a  certain  form,  will  be  vetoed.  The  effective- 
ness of  the  governor's  message  is  measured  not  so  much  by 
his  constitutional  power  as  by  his  political  influence.  Where 
a  governor  belongs  to  the  majority  party  of  the  legislature 
his  message  is  generally  obeyed.  It  may  happen,  however,  that 
although  the  governor  and  the  majority  of  the  legislature  are  of 
the  same  party  some  other  person  than  the  governor — a  leader 
or  a  boss — may  have  greater  influence  with  the  legislature. 
(4)  The  gov-      One  of  the  most  effective  instruments  which  the  governor 

ernor'sveto   ,         .       ,      ,.  •  i      1       ,      .  1  .       , 

has  m  dealmg  with  the  legislature  is  the  executive  veto.^  In 
the  early  constitutions  only  two  states  gave  him  this  power. 
In  the  original  Massachusetts  constitution  the  governor  was 
given  a  qualified  veto.  He  returned  to  the  legislature  meas- 
ures of  which  he  disapproved.  If  the  legislature  repassed  these 
measures  by  a  two-thirds  majority  in  each  of  the  houses,  the 
act  became  a  law  in  spite  of  the  governor's  objection.  In  many 
states  it  was  thought  that  this  method  gave  too  great  a  power 
to  the  governor.  Kentucky  in  1799  revised  its  constitution 
and  provided  that  the  legislature,  by  a  simple  majority  of  all 
the  members  elected,  might  pass  a  law  contrary  to  or  despite 
the  objections  of  the  governor.  This  method  was  popular  dur- 
ing the  first  half  of  the  nineteenth  century,  but  has  not  been 
generally  adopted.  North  Carolina  is  the  only  state  which 
does  not  provide  for  some  form  of  the  executive  veto. 

In  the  type  of  veto  just  discussed  opportunity  is  given  for 
the  legislature  to  pass  the  law  over  the  governor's  objection ; 

^See  J.  A.  Fairlic,  The  Veto  Power  of  the  State  Governor,  in 
American  Political  Science  Review,  Vol.  XI,  pp.  473-404;  J.  H.  Finley 
and  J.  F.  Sanderson,  The  American  Executive  and  Executive  Methods, 
chap,  vi;  .\.  N.  Holcombe,  State  Government  in  the  United  States, 
PP-  327-344- 


THE  STATE  GOVERNOR  137 

that  is,  his  veto  is  not  absolute.  In  most  state  constitutions 
the  governor  is  required  to  return  measures  submitted  to  him 
by  the  legislature  within  a  certain  time — from  three  to  ten  days. 
However,  should  the  measures  be  passed  in  the  last  days  of 
the  legislature,  and  the  legislature  be  adjourned  either  by  con- 
stitutional requirement  or  by  its  own  action,  the  governor 
would  have  a  certain  time  in  which  to  examine  bills  and  either 
approve  or  disapprove  them.  In  case  he  disapproves  them,  the  The 
legislature  not  being  in  session,  his  veto  would  be  absolute,  veto  after 
for  there  would  be  no  opportunity  for  legislative  reconsidera-  ^j^"*^"' 
tion.^  It  was  hardly  contemplated  by  the  framers  of  the 
state  constitutions  that  this  would  frequently  occur.  But  the 
increase  of  legislative  business,  and  in  particular  the  hurried 
passage  under  suspension  of  rules  of  an  immense  number  of 
measures  in  the  last  days  of  the  legislature,  has  greatly  in- 
creased the  possibility  and  even  the  necessity  of  the  governor's 
absolute  veto.  In  fact,  some  state  constitutions — for  example, 
California  and  New  York — allow  the  governor  thirty  days 
in  which  to  consider  bills  and  approve  or  disapprove  them. 
This  makes  him  literally  a  third  house  of  the  legislature,  from 
whose  decision  there  is  no  possible  appeal. 

Originally  the  governor  was  compelled  to  accept  or  veto  an  The  item- 
entire  measure.  This  frequently  presented  a  serious  dilemma. 
Parts  of  a  measure  might  be  good,  while  he  might  not  approve 
of  other  portions.  Particularly  was  this  true  with  regard  to 
appropriation  bills.  In  addition,  state  legislatures  sometimes 
follow  the  unfortunate  practice  of  attaching  ''riders";  that  is, 
bits  of  legislation  not  connected  in  subject  matter,  but  inserted 
in  the  bill.  This  happens  most  often  in  the  case  of  appro- 
priation bills.  The  governor  would  be  obliged  either  to  accept 
a  piece  of  legislation  of  which  he  did  not  approve  or  else 
veto  an  entire  measure  which  might  be  perhaps  an  important 
appropriation  bill.  The  constitutions  of  many  states,  how- 
ever, provide  that  no  bill  except  an  appropriation  bill  should 
embrace  more  than  one  subject.     This  prohibition  was  not 

^Some  states — like  the  federal  government — provide  for  a  "pocket 
veto."  This  is  where  a  bill  passed  in  the  last  days  of  the  session  and 
not  signed  by  the  governor  after  adjournment  fails  to  become  a  law. 


138      STATE  AND  MUNICIPAL  GOVERNMENT 


The  extent 
and  influ- 
ence of  the 
governor's 
veto  power 


Popular 
opinion 
regarding 
the  veto 


sufficiently  effective,  and  considerable  latitude  was  allowed  in 
the  interpretation  of  what  should  constitute  a  single  subject. 
Moreover,  appropriation  bills  were  especially  excepted  from, 
this  prohibition.  Consequently  the  majority  of  the  states  have 
adopted  what  is  known  as  the  item-veto,  applicable  to  appro- 
priation bills,  and  three  of  these  states  allow  the  governor  to 
approve  of  sections  of  any  bill.^  Several  states  go  even  further 
and  allow  the  governor  to  reduce  the  items  voted  by  the  leg- 
islature in  an  appropriation  bill.  In  this  respect  we  find  the 
governor's  legislative  power  reaching  its  highest  point.  He  may 
not  only  disapprove  of  legislative  action  but  may  substitute  his 
own  discretion  for  that  of  the  legislature. 

The  veto  power  is  widely  used,  but  not  evenly  distributed. 
In  1 91 5  over  a  thousand  bills  or  parts  of  bills  failed  to  become 
law  because  of  the  governors'  veto.  In  New  York,  in  1915, 
about  23  per  cent  of  the  measures  or  parts  of  measures  passed 
were  successfully  vetoed  by  the  governor,  in  California  22  per 
cent,  in  Pennsylvania  21  per  cent.  In  the  same  year,  how- 
ever, not  a  single  bill  was  vetoed  by  the  governor  of  Rhode 
Island.-  The  vetoes  were  overwhelmingly  successful.  In  the 
particular  year  under  consideration  only  2  per  cent  of  the  gov- 
ernor's vetoes  were  overridden.  The  effectiveness  of  the  gover- 
nor's veto  is,  of  course,  vastly  increased  when  the  veto  is  an 
absolute  one,  as  it  is  in  the  case  of  measures  submitted  to  him 
at  the  close  of  the  session  of  the  legislature. 

Very  little  criticism  is  aimed  at  state  governors  for  their  use 
of  the  veto.  In  fact,  it  is  frequently  the  case  that  a  governor's 
reputation  rests  upon  his  vetoes.  Not  only  does  he  often  check 
unwise  legislation  and  extravagant  appropriations,  but  he  per- 
forms for  the  legislature  duties  which,  either  through  lack  of 
time  or  ability,  they  do  not  perform  for  themselves.  Cases 
are  not  wanting  where  the  legislatures  have  passed  duplicate 
bills,  bills  in  conflict  with  one  another,  or  defectively  drawn 
bills,  relying  upon  the  careful  review  given  by  the  executive 
to  correct  their  errors. 


'South  Carolina,  Virsinia,  and  WashinRton.  For  a  discussion  of  this  see 

J.  M.  Mathews,  Principles  of  .American  State  .Xfiministration,  pp.  01-62. 

^A.  N.  Hokombc,  State  Government  in  the  United  States,  pp.  327-331. 


THE  STATE  GOVERNOR  I39 

The  veto  is  the  strongest  weapon  in  the  governor's  political  Effect  of 

.  ,  .  the  veto 

arsenal.  He  may  use  it  to  punish  too  indepenaent  members  upon  the 
of  his  party  and  to  consolidate  his  own  personal  influence,  posuion"^^ 
This  is  especially  true  where  the  veto  exists  for  separate  items 
in  appropriation  measures.  The  governor  may  consider  not 
simply  the  merits  of  a  particular  appropriation  but  may  weigh 
the  loyalty  of  the  member  desiring  the  appropriation  and  de- 
cide whether  or  not  his  conduct  deserves  reward.  Through 
the  threat  of  a  veto  the  governor  may  compel  the  legislature 
to  revise  or  amend  a  proposal. 

The  executive  power  of  the  state  governor  includes  the  power  The  execu- 
of  appointment  and  removal,  the  supervision  of  administration,  ofWr^  "^ 
the  enforcement  of  the  laws,  the  military  power,  and  the  power  governor: 
of  pardon.  As  has  been  said,  all  this  authority  is  not  concen- 
trated in  the  hands  of  the  governor  but  is  everywhere  shared 
by  the  governor  with  other  officials  or  bodies.  The  Constitu- 
tion of  the  United  States  declares  that  the  executive  power  shall 
"be  vested  in  a  president,"  thereby  centralizing  the  executive 
authority.  Although  similar  words  are  found  in  some  state 
constitutions  the  tendencies  are  otherwise.  Recognizing  this, 
the  majority  of  the  state  constitutions  provide  that  "the 
supreme  [or  chief]  executive  power  shall  be  vested  in  a  gover- 
nor." The  word  "supreme"  is  in  the  nature  of  a  limitation 
and  a  recognition  of  the  fact  that  there  are  other  bodies  exercis- 
ing the  executive  function.  State  governors  again  are  unlike 
the  president  of  the  United  States  in  that  they  have  very  little 
inherent  executive  authority.  The  executive  powers  of  the 
state  governors  are  generally  granted  explicitly  either  by  the 
constitution  or  by  statute,  and  these  are  seldom  inherent  or 
implied  powers. 

In  the  national  government  all  officers  are  appointed  by  the  (i)  Power  of 
president  of  the  United  States  or  by  subordinates  whom  he  ment 
appoints.  This  is  not  so  in  the  states.  Originally  the  gover- 
nor's power  of  appointment  was  very  slight,  for  practically  all 
the  state  officials  were  chosen  by  the  legislature.  Two  tend- 
encies may  be  observed.  First,  this  power  of  selection  was 
taken  from  the  legislature  and  vested  directly  in  the  people. 
Throughout  the  greater  part  of  the  nineteenth  century  this 


140      STATE  AND  MUNICIPAL  GOVERNMENT 

tendency  was  given  full  sway,  and  most  of  the  state  officers 
were  popularly  elected.    Only  subordinate  officials  were  ap- 
pointed.  In  the  last  decades  of  the  nineteenth  century,  how- 
ever, it  was  seen  that  popular  election  was  not  a  satisfactory 
method  for  selecting  officials,  and  the  appointment  of  most  of 
the  new  officers  demanded  by  the  increase  and  extension  of 
governmental  activities  was  vested  in  the  governor.   In  addi- 
tion, the  appointment  of  a  few  of  the  older  officers  was  trans- 
ferred also  to  the  governor.    Although  these  officers  became 
appointive,  the  governor  was  not  given  a   free  hand  in  his 
appointments.    Not  until  the  twentieth  century  was  there  a 
very  widespread,  successful  movement  to  vest  in  the  governor 
alone  the  appointment  of  state  officials. 
Limitations       Many  limitations  on  the  governor's  power  of  appointment 
governor's    may   be   observed.    In   some  states — INIassachusetts,    for   ex- 
pointmenr"  '^"ip^^ — ^^6    appointing   powcr    is    checked    by    an    executive 
(o)  confir-    council.     This  is  an  anomaly   inherited    from   colonial    davs. 

mation  of 

council  or      More  oftcn  the  upper  chamber  shares  with  the  governor  the 
appointing  power,  and  the  governor — like  the  president  of  the 
United  States — nominates,  while  the  senate  confirms  the  ap- 
(6)  compo-    pointment.    A  second  limitation  upon  the  governor's  power  of 
commissions  appointment  is  found  in  the  composition  of  the  various  boards 
[Gradual      and  Commissions  which  he  may  select.    These  limitations  may 
renewal]       j^^  ^^  ^j^^  nature  of  gradual  renewal ;  that  is,  allowing  a  gover- 
nor in  a  single  term  to  appoint  only  a  portion  of  the  board. 
[Bipartisan  Certain  boards  must  be  representative  of  more  than  one  politi- 
cal party,  and  the  governor's  power  is  thus  limited.    In  some 
[Residence]   instances  there  are  limitations  of  residence,  which  require,  for 
example,  that  a  board  should  represent  various  sections  of  the 
[Technical    State.    In  some  other  cases,  where  technical  qualifications  are 
tion's?*^*       necessary,   these  serve  as   a   limitation   upon   the  governor's 
power.    It  is  difficult,  however,  to  devise  a  restriction  which 
will  be  effective  and  at  the  same  time  not  interfere  with  the 
governor's  power  to  appoint  and  the  senate's  power  to  approve. 
[Ex-offlcio     -Another  restriction   is   found   in  the  composition  of  e.\-officio 
members]      boards.    In  these,  although  the  governor  may  appoint  certain 
members  of  the  board,  other  members  are  placed   u[3on   the 
board  as  the  result  of  holding  special  offices,  to  which  they  are 


THE  STATE  GOVERNOR  141 

generally  elected  by  the  electorate.    A  more  important  limita-  [civii- 

,  ,  .    ,-  1-       •      .1         •    -1  •        service 

tion  on  the  governor  s  appomtmg  power  lies  m  the  civil-service  regulations] 

laws  of  the  various  states. 

The  theory  of  the  civil-service  laws  is  to  insure  that  only  civii- 
,.^  1     11    1  -1  rr  ITT-  1    service  laws 

qualified   persons   shall    be   appointed    to   state   offices.    vVith 

this  end  in  view  a  commission  is  established  to  examine  appli- 
cants for  state  positions  and  to  certify  their  fitness  to  the 
appointing  authority.    The  civil-service  commission  is  chosen  The  civil- 

service 

in  various  ways.  In  some  states  it  is  appointed  directly  by  commission 
the  governor.  Where  this  is  done  and  the  appointments  are 
for  no  fixed  term  the  commissioners  are  generally  amenable  to 
executive  influence.  Where  the  commissioners  are  appointed 
by  the  governor  with  the  consent  of  some  other  body  and  are 
not  removable,  less  executive  influence  may  be  exerted.  Much 
depends,  however,  on  the  character  and  independence  of  the 
commission. 

It  is  the  duty  of  the  commission  to  prepare  examinations  suit-  work  of  the 
able  for  applicants  for  any  executive  position  covered  by  the 
law.  These  examinations  are  taken  by  the  candidates  and  are 
rated  by  the  examiners.  The  examinations  vary  greatly  in 
character  from  time  to  time.  They  are  too  often  technical  and 
test  the  candidate's  ability  to  prepare  for  and  pass  an  examina- 
tion rather  than  his  capacity  for  executive  work.  Even  this 
type  of  examination,  however,  if  honestly  marked,  may  prevent 
the  appointment  of  the  most  inefficient  political  appointees, 
although  it  will  not  guarantee  the  selection  of  able  officials. 
The  work  of  the  commissions  is  negative  rather  than  positive. 
Another  criticism  of  the  civil-service  rules  is  found  in  the 
numerous  exemptions  which  the  legislatures  make.  These  ex- 
emptions may  apply  either  to  the  nature  of  the  position — that 
is,  technical  or  confidential  positions  may  be  exempt — or  to 
the  character  of  the  candidate.  For  example,  veterans  of  the 
Civil  War  or  subsequent  wars  may  be  exempted  either  com- 
pletely or  in  part.  These  exemptions  do  much  to  break  down 
the  competitive  character  of  the  examination. 

It  is  a  mistake  to  suppose  that  a  position  obtained  through  Removals 

,.  ,  .    .,  .  ,        .  .     under  the 

appointment  according  to  the  civil-service  rules  is  permanent,  civii-service 
Removals  are  allowable.     In  fact,  however,  the  civil-service  ''"'^ 


142      STATE  AND  MUNICIPAL  GOVERNINIENT 

rules  may  be  criticized  in  that  they  make  removals  too  difficult. 
In  most  states,  in  order  to  remove  an  officer  appointed  under 
the  civil-service  rules,  notice  must  be  given,  a  hearing  must  be 
held,  and  cause  for  removal  must  be  proved.  In  some  states 
the  courts  have  decided  that  the  cause  which  alone  will  justify 
a  removal  must  be  such  as  can  be  proved  in  a  court  of  law. 
Therefore  it  is  extremely  difficult  to  secure  removal  for  any 
cause  less  serious  than  a  crime.  The  result  is  that  some  states 
afford  the  spectacle  of  the  courts  reinstating  inefficient  and 
negligent  officials  to  the  service.  In  some  states  offices  held 
under  the  civil  service  have  almost  life  tenure. 
Results  of  While  the  civil-service  examinations  have  perhaps  prevented 
service'  ^he  selection  of  the  worst  kind  of  political  appointees,  they 
have  not  given  the  best  type  of  public  service.  State  adminis- 
trative offices  are  too  often  filled  with  persons  who  have  gained 
their  positions  as  the  result  of  a  successful  examination  and 
who  hold  these  positions  in  spite  of  increasing  inefficiency. 
The  systems  too  generally  do  not  provide  for  removals  or 
sufficiently  rapid  promotions  on  account  of  merit.  The  officials 
so  appointed  tend  to  regard  their  positions  as  vested  rights. 
In  spite  of  these  criticisms,  however,  the  civil-service  system, 
as  applied  to  the  states,  has  put  an  end  to  some  of  the  greatest 
scandals  which  formerly  characterized  state  political  life. 
(2)  Power  of  The  president  of  the  United  States  may  remove  all  officers 
he  appoints  except  the  judges.  No  such  wide  power  is  given 
to  the  state  governor.  Wherever  his  power  of  appointment  is 
shared  with  another  body  the  consent  of  this  body  must  usually 
be  obtained  for  removal.  This  is  a  most  serious  limitation  upon 
the  power  of  the  governor  to  direct  and  control  state  adminis- 
tration. In  addition,  it  is  generally  held  that  where  the  gov- 
ernor appoints  an  officer  for  a  definite  term  either  with  or 
without  the  consent  of  some  other  body,  that  officer  may  not 
be  removed  except  by  impeachment  unless  other  methods  are 
provided  by  law.  It  is  almost  needless  to  point  out  that  the 
officers  elected  directly  by  the  people  or  by  the  legislature  are 
generally  irremovable  by  the  governor.'  Such  a  condition  of 
affairs  makes  it  almost  impossible  for  the  governor  effectively 

I  Sec  paRcs  132,  154,  162. 


THE  STATE  GOVERNOR  143 

to  control  the  administrative  policy  of  the  state.  This  has  long 
been  recognized,  and  attempts  more  or  less  successful  have 
been  made  to  widen  the  governor's  power  of  removal.  In  some 
states^  he  may  remove  all  officers  appointed  by  him  and  even 
elective  officers  "on  the  address  of  two  thirds  of  the  senate." 
The  state  legislatures  have  also  extended  the  governor's  power 
of  removal.  This  is  entirely  possible  in  the  case  of  officers 
holding  positions  created  by  the  legislature  if  the  legislature 
shall  authorize  such  removals.- 

Two  classes  of  officers  who  execute  the  state  laws  are  with-  other 
drawn  from  the  power  of  the  governor  to  appoint  and  remove,  ur^n^he"^ 
The  first  are  the  judicial  officials  of  the  state — the  judges  and  governor's 

•'  J       »  power  of 

district   or   county   attorneys.    These   are   almost   everywhere  appoint- 
chosen  by  direct  election.^    In  the  second  class  are  the  local  removal 
officers — the  county  commissioners  or  supervisors,  the  sheriffs, 
the  mayors  of  the  cities,  and  the  heads  of  the  police  depart- 
ment, together  with  many  town  and  municipal  officers  charged 
with  the  enforcement  of  state  laws.    The  theory  of  local  gov- 
ernment allows  the  different  localities  to  select  their  own  of- 
ficers, although  these  officers  may  be  integral  parts  of  the  state 
administration   and  share   with   the   governor   a   part   of   the 
executive  power.    In  some  states — New  York,  for  example— 
the  governor  has  power  to  suspend  and  remove  some  of  these 
local  officials,  but  generally  this  power  of  control  is  very  slight,  political 
Next  to  the  power  of  veto,  the  governor's  power  of  appoint-  quences 
ment  is  his  strongest  political  weapon.    Although  it  is  neither  °**^^ 

^         ^  r-  o  governor's 

absolute  nor  completely  independent,  yet  a  very  large  number  povsrerofap- 
of  officials  owe  their  political  and  official  life  entirely  to  the 
governor.  Thus,  as  in  national  and  municipal  affairs  the  execu- 
tive, through  the  appointing  power,  may  build  up  a  personal 
following,  so  the  state  governor,  through  the  use  of  the  patron- 
age, may  consolidate  his  position  within  his  party.  He  may 
do  even  more  and,  by  sharing  his  appointing  power  with  the 

1  Arkansas,  Colorado,  Florida,  Maryland,  Nebraska,  Pennsylvania, 
West  Virginia. 

-See  "Removal  of  Public  Officers.  A  Ten-Year  Review,"  in  American 
Political  Science  Review,  Vol.  VIII,  pp.  621-629. 

3  In  Massachusetts,  where  the  judges  are  appointed  for  life,  they  may 
be  removed  by  the  governor  on  a  joint  address  of  the  legislature. 


144      STATE  AND  MUNICIPAL  GOVERNMENl 

legislators,  obtain  from  them  support  for  his  measures.  This 
power  is  actually  far  less  than  that  of  the  president  of  the 
United  States  or  of  the  mayors  of  large  cities  because  of  the 
many  restrictions  upon  the  free  exercise  of  the  governor's  power. 

(3)  Power  of      The  power  to  grant  pardons  for  convictions  of  offenses  is 
pardon         generally  one  of  the  governor's  prerogatives.^    It  is,  however, 

not  an  unlimited  power  nor  is  it  always  exercised  independ- 
ently by  him.  He  is  usually  prohibited  from  granting  pardons 
for  impeachments  and  often  for  treason.  Of  course  it  is  obvi- 
ous that  the  governor's  power  of  pardon  should  be  limited  to 
the  proceedings  of  the  courts  of  his  own  state ;  for  judgments 
of  courts  of  other  states  or  of  the  federal  courts  he  has  no  such 
prerogative.  In  Connecticut  the  pardoning  power  is  vested  in 
the  legislature ;  elsewhere  it  is  vested  in  the  governor  or  in  a 
board  of  pardons  or  council,  or  in  both.-  Sixteen  states  have 
separate  boards  of  pardons.  In  five  states  the  board  of  pardons 
has  sole  power.  In  others  the  governor  has  the  pardoning  power 
on  recommendation  of  the  board  or  a  council.  The  power  to 
pardon  generally  includes  the  power  to  remit  fines,  penalties, 
and  forfeitures  and  to  grant  reprieves  and  commutation  of 
sentences,  although  there  are  great  variations  in  the  practice 
in  various  states. 

(4)  Miiiury      In  the  constitutions  of  most  states  the  governor  is  designated 

as  commander  in  chief  of  the  militia.  Actually,  the  governor, 
like  the  president  of  the  United  States,  never  commands  in 
person.  His  military  functions  are  generally  exercised  through 
the  adjutant  general.  The  governor,  however,  commissions  the 
officers,  although  this  is  to  a  certain  extent  regulated  by  statute. 
Use  of  the  One  power  is  given  to  every  state  governor  except  in  Ten- 
nessee. This  is  the  power  to  call  out  the  militia  in  case  of 
riot,  disorder,  or  rebellion.  In  Tennessee''  the  militia  may  be 
called  into  service  only  when  the  legislature  by  law  declares 


^See  Bulletins  for  the  Massachusetts  Constitutional  Convention,  Vol.1, 
No.  4. 

-Maine,  Massachusetts,  and  New  Hampshire  vest  the  jiowcr  of  jiar- 
rlon  in  llic  governor  and  the  executive  council.  In  thirty-two  states  tl:c 
governor  has  sole  power  to  pardon. 

"Constitution  of  Tennessee,  Article  III,  Sect.  v. 


THE  STATE  GOVERNOR  145 

that  public  safety  requires  it ;  thus,  should  the  necessity  for  the 
utilization  of  force  arise  during  the  recess  of  the  legislature  a 
special  session  must  be  called.  Generally,  however,  the  gov- 
ernor does  not  call  out  the  militia  on  his  own  initiative,  but  at 
the  request  of  the  local  authorities  of  the  area  in  which  the 
disturbance  occurs.  When  the  militia  of  the  states  is  sum- 
moned by  federal  authority  and  incorporated  with  the  mili- 
tary forces  of  the  United  States  the  governor  ceases  to  be 
commander  in  chief. 

Technically,  martial  law  cannot  exist  within  a  state.  The  Martial  law 
militia  and  the  use  of  the  military  force  are  but  additional 
police  forces,  not  to  wage  war  but  to  preserve  the  peace. 
Nevertheless  the  governor  may  take  certain  steps  in  preserving 
the  peace  which  are  not  reviewable  by  the  courts.  Thus,  in 
1903  the  governor  of  Colorado  declared  a  certain  portion  of 
the  state  to  be  in  rebellion  and  arrested  and  detained  certain 
persons.  The  supreme  court  of  Colorado  held  that  his  action 
was  not  reviewable  by  the  state  courts.  This  opinion  was 
upheld  by  the  Supreme  Court  of  the  United  States,  which, 
speaking  by  Justice  Holmes,  said : 

That  means  that  he  shall  make  the  ordinary  use  of  the  soldiers 
to  that  end ;  that  he  may  kill  persons  who  resist,  and,  of  course, 
that  he  may  use  the  milder  measure  of  seizing  the  bodies  of  those 
whom  he  considers  to  stand  in  the  way  of  restoring  peace.  Such 
arrests  are  not  necessarily  for  punishment,  but  are  by  way  of  pre- 
caution, to  prevent  the  exercise  of  hostile  power.  So  long  as  such 
arrests  are  made  in  good  faith  and  in  the  honest  belief  that  they 
are  needed  in  order  to  head  the  insurrection  off,  the  governor  is 
the  final  judge  and  cannot  be  subjected  to  an  action  after  he  is 
out  of  office,  on  the  ground  that  he  had  not  reasonable  ground  for 
his  belief.  .  .  . 

No  doubt  there  are  cases  where  the  expert  on  the  spot  may 
'be  called  upon  to  justify  his  conduct  later  in  court,  notwithstand- 
ing the  fact  that  he  had  sole  command  at  the  time  and  acted  to  the 
best  of  his  knowledge.  That  is  the  position  of  the  captain  of  a 
ship.  But,  even  in  that  case,  great  weight  is  given  to  his  determina- 
tion, and  the  matter  is  to  be  judged  on  the  facts  as  they  ap- 
peared then,  and  not  merely  in  the  light  of  the  event.^ 

'^Moyer  v.  Peabody,  212  U.  S.  78,  83,  84,  85,  86. 


146      STATE  AND  MUNICIPAL  GOVERNMENT 


(5)  The  gov- 
ernor as  rep- 
resentative 
of  the  state 


The  confer- 
ence of 
governors 


The  strong 
governor 


The  governor  represents  the  state  in  its  official  dealings  with 
other  states.  By  the  United  States  Constitution  the  states  are 
forbidden  to  make  treaties,  although  they  may  make  agree- 
ments subject  to  the  approval  of  Congress.  In  one  way,  how- 
ever, the  governor  is  the  diplomatic  representative  of  the  state. 
This  is  in  cases  of  extradition.^  By  the  Constitution  of  the 
United  States  persons  "charged  in  any  state  with  treason, 
felony,  or  other  crime,  who  shall  tlee  from  justice  and  be  found 
in  another  state,  shall,  on  the  demand  of  the  executive  author- 
ity of  the  state  from  which  he  fled,  be  delivered  up.  .  .  ."  In 
practice  the  governor  of  the  state  from  which  the  fugitive  has 
filed  makes  this  demand  upon  the  governor  of  the  state  in  which 
the  fugitive  is  apprehended.  Although  the  provision  of  the 
constitution  is  mandatory,  a  governor  exercises  his  discretion 
as  to  whether  he  shall  honor  such  demand. 

In  1908  began  a  series  of  conferences  of  the  governors  of  the 
different  states.  This  was  under  the  auspices  of  the  national 
government,  and  it  was  hoped  that  cooperation  would  be  brought 
about.  The  first  sessions  of  the  conference  were  extremely 
interesting  and  suggestive,  and  it  was  believed  that  uniformity 
of  legislation  and  harmony  of  action  might  result.  These  hopes, 
however,  were  not  realized.  Yet  the  conference  is  valuable 
in  furnishing  a  clearing  house  for  the  interchange  of  views, 
and  exercises,  perhaps,  an  intangible  influence. 

During  the  first  decade  of  the  twentieth  century  several 
states  elected  rather  remarkable  executives, — executives  who 
made  themselves  the  real  political  leaders  of  the  state  both 
in  legislation  and  administration.  To  these  governors  was  given 
the  name  of  "strong  governors."  In  New  York,  Roosevelt  may 
be  taken  as  an  example ;  in  Missouri,  Folk ;  in  California, 
Johnson ;  in  New  Jersey,  Wilson.  Considerable  attention  was 
paid  to  their  administrations,  and  it  was  felt  that  a  new  era 
and  a  new  development  of  the  state  e.xecutive  had  opened.  In 
some  instances  these  governors  were  successful   in  leaving  a 


^Kvcrett  Kimball,  National  Govrrnment  of  the  United  States,  pp.  80- 
81;  W.  VV.  WiilouKhby,  The  Constitutional  Law  of  the  United  States, 
Vol.  I,  pp.  222-224.  ^  ■  A.  Beard,  Readings  in  American  Government 
and  Politics,  p.   148,  gives  examples  of  extradition  proceedings. 


THE  STATE  GOVERNOR  147 

more  or  less  permanent  impress  upon  the  state  administration, 
in  others  their  plans  were  reversed  by  subsequent  legislatures. 
Nevertheless  they  showed  the  possibility  of  a  new  position  for 
the  state  executive. 

Originally  the  governors  of  the  states  ranked  high  in  politi-  -j The  new 
cal  hierarchy.^  John  Jay,  for  example,  resigned  the  chief  jus-  governor" 
ticeship  of  the  Supreme  Court  of  the  United  States  to  become 
governor  of  New  York.  This  high  position,  however,  was  not 
due  to  the  actual  powers  and  prerogatives  the  governor  pos- 
sessed. It  was  more  a  tradition  from  colonial  and  revolutionary 
days.  During  the  nineteenth  century,  as  has  been  shown,  the 
legislature  steadily  lost  in  power  and  influence,  and  to  a  certain 
extent  the  governor  gained.  He  certainly  increased  his  legisla- 
tive powers  through  the  use  of  the  veto  and,  to  some  slight 
degree,  his  appointing  power.  At  the  time  of  the  Civil  War 
the  governor's  position  was  important  largely  because  of  his 
power  as  commander  of  the  militia.  This  was  true  especially 
in  the  border  states,  although  certain  ''war  governors"  of  other 
states  made  enviable  reputations  for  themselves.  By  the  close 
of  the  nineteenth  century  the  governor  became  potentially  the 
most  powerful  element  in  the  political  life  of  the  state.  His 
power,  however,  rested  not  so  much  upon  constitutional  grants 
as  upon  his  political  influence.  In  public  estimation  the  gov- 
ernor was  regarded  as  the  bulwark  and  protection  of  the  people 
against  legislative  inefficiency.  Because  of  his  legislative  power 
and,  in  particular,  through  the  use  of  his  veto  power  the 
governor  was  held  responsible  for  the  passage  of  laws  and  for 
economy  in  appropriations.  In  many  instances  the  governors 
have  been  successful.  Such  success  has  attended  their  efforts 
that  demands  have  been  made  that  the  administration  of  the 
state  should  be  centralized  and  integrated  and  that  the  governor 
should  be  at  its  head.  Some  steps  have  been  taken  in  this 
direction,  and  in  the  reorganization  of  the  administration  of 
several  states  the  governor  is  the  integrating  force, 

ij.  M.  Mathews,  "The  New  Role  of  the  Governor,"  in  American 
Political  Science  Review,  Vol.  VI,  p.  216,  and  "The  New  Stateism,"  in 
North  American  Review,  Vol.  CXCIII,  pp.  808-815  ;  J.  A.  Fairlie,  "The 
State  Governor,"  in  Michigan  Law  Review,  Vol.  X,  pp.  370-383,  458-475. 


148      STATE  AND  MUNICIPAL  GOVERNMENT 

In  spite  of  the  governor's  increased  power  the  office  has 
not  increased  in  popular  estimation.  Today  governors  regard 
the  office  as  a  stepping-stone  to  something  higher — to  the 
Senate  or  the  president's  cabinet,  or  even  to  the  presidency 
itself.  In  fact,  the  success  of  the  governor  in  the  administra- 
tion of  the  affairs  of  his  state  has  frequently  made  him  a 
presidential  possibility  or  actuality.  The  names  of  Hayes, 
Cleveland,  Roosevelt,  and  Wilson  are  examples  of  successful 
presidential  aspirations  as  a  reward  of  successful  state  adminis- 
trations, while  Cox,  Johnson,  Lowden,  and  many  others  may 
be  taken  as  examples  of  presidential  possibilities. 


CHAPTER  VIII 

STATE  ADMINISTRATION 

State  administration  is  both  decentralized  and  disintegrated.^  char- 
It  is  decentralized  in  that  the  local  areas — counties,  cities,  and  ofsute**^^ 
towns — are  frequently  charged  with  the  enforcement  of  state  adminis- 

1  1       ■  ,     7  .  tration 

laws  and  with  the  appomtment  and  supervision  of  the  officials 
who  administer  these  laws.  The  most  obvious  example  is 
found  in  the  police  of  the  cities,  the  constables  of  the  towns, 
and  the  sheriffs  of  the  counties.  Administration  is  disinte- 
grated in  that,  unlike  the  administration  of  the  federal  govern- 
ment, there  is  no  single  chief  executive.  The  governor  and 
numerous  other  executive  officials  are  chosen  directly  by  the 
people  and  thus  have  equal  authority  and  are  not  responsible 
one  to  the  other.  Thus  a  governor  cannot  control  an  attorney- 
general  nor  remove  a  state  treasurer,  although  his  administra- 
tion is  vitally  affected  by  the  actions  of  these  officials. 

State  officials,  as  distinguished  on  the  one  hand  from  local  composition 
officials  and  on  the  other  from  state  employees,  may  be  divided  exec'lftfvf  ^ 
into  two  classes.-    The  first  class  includes  the  governor,  lieu-  "lepartmeiit 
tenant   governor,    secretary   of   state,    attorney-general,    state 
treasurer,  state  auditor  and,  perhaps,  one  or  two  other  officers. 
These  offices  are  established  by  the  constitution,  and   their 
incumbents,    known    as    heads    of    departments,    are    usually 
elected  directly  by  the  people.    This  group  of  officials  is  some- 
times designated  as  the  executive  department  of  the  govern- 
ment.   A  second  and  by  far  larger  class  of  state  officials  hold 
offices  which  are  sometimes  established  by  the  constitution, 

^The  best  account  of  state  administration  is  by  J.  M.  Mathews,  Prin- 
ciples of  American  State  Administration,  1917.  A.  N.  Holcombe,  State 
Government  in  the  United  States,  chap,  x,  gives  a  very  valuable  and 
suggestive  discussion. 

-See  J.  M.  Mathews,  Principles  of  American  State  Administration, 
chap.  vi. 

149 


150      STATE  AND  MUNICIPAL  GOVERNMENT 


The  execu- 
tive de- 
partments : 


(i)  The 

lieutenant 

governor 


[Duties 
of  the 
lieutenant 
governor] 


(2)  The 
secretary 
of  state 


[Duties] 


but  more  often  by  the  legislature.  These  offices  may  be 
single  or  plural  in  composition ;  that  is,  the  department  may 
be  presided  over  by  one  commissioner  or  by  a  commission. 
These  officers  are  chosen  in  a  great  diversity  of  ways,  for 
varying  terms,  and  are  subject  to  different  degrees  of  super- 
vision and  control.  They  perform  the  multitudinous  functions 
which  the  modern  state  undertakes. 

In  about  thirty-five  states  there  is  a  lieutenant  governor/ 
usually  elected  at  the  same  time  and  in  the  same  manner  and 
with  the  same  qualifications  as  the  governor.  He  may  be 
classed  as  an  executive  officer,  generally  with  legislative  func- 
tions. As  an  executive  officer  his  duties  are  largely  potential 
and  ex  officio.  As  a  potential  executive  officer  he  succeeds  to 
the  duties  of  the  governor  in  case  of  death,  resignation,  or 
removal ;  as  an  ex-officio  executive  officer  he  is  frequently  found 
on  numerous  commissions  and  boards.  He  presides  over  the 
governor's  executive  council  in  the  few  states- — Massachu- 
setts, for  example — where  it  has  survived.  The  legislative 
function  of  the  lieutenant  governor  is  that  of  presiding  over 
the  upper  house  or  senate  of  the  state  legislature  in  thirty- 
four  states.  Unlike  the  speaker  of  the  lower  house,  he  acts 
rather  as  a  moderator  than  as  a  political  leader. 

The  secretary  of  state  is  an  officer  found  in  all  the  spates. 
Practically  everywhere  he  is  chosen  by  direct  popular  vote.-'' 
As  a  result  of  popular  election  he  is  independent  of  any  supe- 
rior administrative  control,  but  his  powers  are  minutely  regu- 
lated both  by  the  constitution  and  by  the  statute.  Indeed,  the 
legislature  may  prescribe  for  him  duties  entirely  unconnected 
with  his  office  and  pay  him  additional  salary  therefor.  His 
qualifications  and  term  of  office  are  generally  the  same  as  that 
of  the  governor. 

The  functions  of  the  secretary  of  state  are  numerous  and 
varied.    He  is  usually  keeper  of  the  public  records,  authenticates 


'See  "The  Lieutenant  Governor,"  in  Aincrican  Political  Science  Re- 
view, Vol.  XI,  pp.  88-92. 

^Massachusetts,  New  Hampshire,  North  Carolina. 

3  In  Delaware,  Maryland,  New  Jersey,  and  Pennsylvania  he  is  ap- 
pointed by  the  governor  with  the  consent  of  the  senate. 


STATE  ADMINISTRATION  151 

public  acts,  and  is  required  to  seal  all  commissions.  In  many 
states  he  has  important  duties  in  connection  with  elections: 
the  ballots  are  sometimes  prepared  under  his  direction  and 
certificates  of  election  are  issued  by  him.  In  some  states 
he  issues  certificates  of  incorporation  to  companies  organized 
under  state  laws,  grants  licenses,  and  may  serve  as  ex-officio 
member  on  numerous  boards  and  commissions.  His  duties  are 
chiefly  ministerial  in  character,  although  in  some  states  he 
has  considerable  discretionary  power.  In  general  his  office 
and  functions  are  ill  defined  and  might  with  propriety  be 
transferred  to  other  departments  and  the  office  abolished. 

One  of   the   most   important   executive   officers   chosen   by  (3)  The 
direct  popular  vote^  is  the  attorney-general.-    While  in  many  gen°eraT' 
states  his  term  coincides  with  that  of  the  governor  there  are 
several  exceptions.    He  is  subject  to  impeachment  in  all  states, 
and  in  New  York  he  may  be  removed  by  a  two-thirds  vote  of 
the  senate  on  recommendation  of  the  governor. 

The  attorney-general  represents  the  state  in  all  legal  actions  [Powers  ana 

,       ,  .       .  .         ,        r    ,        1  TT  duties] 

whether  m  its  own  or  m  the  federal  courts.    He  prosecutes  [Forensic 
offenders  against  state  law  and  defends  state  officials  in  actions  *"'^<=t'<"^^l 
brought  against  them  in  their  official  capacity.    He  has  some 
power,   though  limited,    to   enter   a   nolle   prosequi   and   thus 
discontinue  an  action. 

He  may  be  called  upon  by  the  governor,  the  legislature,  and  [Advisory 

-^    .    ,         .     ,  .    .  ^         ^■  c    functions] 

other  officials  of  the  state  to  render  opinions  upon  legality  01 
action  or  upon  the  constitutionality  of  measures.  His  opinions 
are  generally  not  mandatory  nor  do  they  furnish  a  justification 
for  any  action  taken  in  accordance  with  a  mistaken  opinion. 
The  attorney-general  also  consults  with  and  advises  the  local 
prosecuting  attorneys. 

The  attorney-general  may  pass  upon  applications  for  sug-  [Quasi- 

.  .         ,  judicial 

gestions  to  the  court  of  certain,  extraordinary  writs  that  may  functions] 

iln  New  Jersey  and  Pennsylvania  he  is  appointed  by  the  governor 
with  the  advice  of  the  senate,  in  New  Hampshire  by  the  governor  and 
council,  in  Tennessee  by  the  judges  of  the  highest  court,  and  in  Maine 
by  a  joint  vote  of  the  legislature. 

2 See  J.  M.  Mathews,  Principles  of  American  State  Administration, 
pp.   140-145;   also   Cyclopedia  of   American  Government,  Vol.   I,  p.  93. 


152      STATE  AND  MUNICIPAL  GOVERNMENT 


[Miscella- 
neous func- 
tions] 


(4)  As- 
sistant 
attorneys- 
general  and 
council  for 
commissions 


(5)  County 
or  district 
attorneys 


^6)  Finan- 
cial officers 


be  issued ;  as,  for  example,  the  writ  of  quo  warranto  to  test 
the  title  of  an  officeholder. 

The  most  important  of  the  attorney-general's  miscellaneous 
duties  is  in  connection  with  the  board  of  pardons,  where  his 
opinion  is  often  conclusive.  In  addition  he  not  infrequently 
serves  as  an  ex-officio  member  of  one  or  more  of  the  state 
boards  or  commissions. 

It  is  often  the  case  that  many  of  the  numerous  state  commis- 
sions are  authorized  to  employ  special  counsel  to  advise  them 
in  their  proceedings.  The  utilization  of  such  advice  further 
disintegrates  the  state  administration  and  tends  to  cause  fric- 
tion between  the  attorney-general's  office  and  the  commission. 
Even  where  such  conflict  does  not  arise  the  measure  is  one 
of  doubtful  cooperation  and  harmony.  Some  states  allow  the 
governor  or  attorney -general  to  appoint  special  deputy  or  assist- 
ant attorneys-general  to  conduct  special  prosecutions.  These 
deputy  assistant  attorneys-general  may  be  intrusted  with  the 
prosecution  of  a  question  of  interest  to  the  state  at  large  or 
may  be  assigned  to  some  particular  locality  in  which  the  local 
district  or  county  attorney  is  not  showing  sufficient  activity, 
needs  assistance,  or  is  proved  inefficient. 

County  or  district  attorneys  are  charged  with  the  enforce- 
ment of  state  laws.  They  are  chosen  directly  by  the  people 
within  their  districts  and  are  not  responsible  to  the  attorney- 
general's  department.  They  are  local  officers  and  as  such  will 
be  discussed  in  later  chapters.^ 

Every  state  has  a  state  treasurer.-  In  forty-four  of  the 
states  he  is  elected  by  direct  popular  vote  and  is  thus  by  law 
independent  of  the  governor,  in  some  states  serving  for  a 
term  which  does  not  coincide  with  that  of  the  governor.  Orig- 
inally the  treasurer  was  supposed  to  have  physical  possession 
of  the  state  funds  and  was  personally  responsible  for  them. 
Now,  however,  the  states  have  provided  vaults  for  the  security 

iln  Maine,  Maryland,  New  Hampshire,  and  New  Jersey  they  are 
chosen  by  the  legislature. 

-See  especially  J.  A.  Fairlic,  "Revenue  and  Financial  Administra- 
tion," in  Report  of  the  Efficiency  and  Economy  Committee  of  Illinois, 
pp.  146-149;  J.  M.  Mathews,  Principles  of  American  State  Administra- 
tion, pp.  145-148. 


STATE  ADMINISTRATION  153 

of  the  funds  or  they  allow  the  treasurer  to  deposit  the  state 
funds  in  banks/  The  duties  of  the  treasurer  are  chiefly- 
ministerial  ;  that  is,  he  receives  the  funds  raised  by  taxes  and 
other  methods  and  disburses  them  in  accordance  with  war- 
rants drawn  upon  him  by  other  officials.  His  chief  discre- 
tionary function  lies  in  the  determination  of  state  depositories, 
where  this  is  allowed  to  him.  Nowhere  has  the  state  treasurer 
any  of  the  powers  of  a  finance  minister  abroad  or  any  influence 
over  the  revenue  laws  or  appropriation  bills.  In  addition  to 
these  duties  the  state  treasurer  is  frequently  ex-officio  member 
of  numerous  boards. 

In  all  states  but  three  there  is  a  separate  officer  and  office  (7)  Auditor, 

or  comp- 

for  the  purpose  of  auditing  the  receipts  and  payments  to  the  trouer 
state  treasurer.-  The  auditor,  or  comptroller,  is  elected  by 
popular  vote  in  all  but  two  states.^  His  term  generally  corre- 
sponds to  that  of  the  state  treasurer,  although  in  four  states  he 
serves  for  a  longer  term.  He  is  thus  independent  of  both  the 
governor  and  the  state  treasurer,  but  in  no  state  does  he  have 
a  quasi-judicial  tenure  hke  the  auditing  officials  in  Great 
Britain.  The  chief  function  of  the  auditor  is  to  act  as  a  check 
on  the  state  treasurer ;  that  is,  to  issue  warrants  for  the  pay- 
ments of  money  and  to  check  the  various  branches  of  state 
government  and  keep  them  within  the  limits  of  their  appro- 
priation. It  is  his  duty  to  see  that  no  money  is  paid  out  of  the 
state  treasury  except  on  appropriation  of  the  legislature  or  by 
law.  In  some  states  he  receives  and  compiles  the  estimates  for 
appropriations  and  has  certain  duties  in  connection  with  the 
assessment  and  collection  of  taxes.  In  New  York,  Ohio,  and 
several  other  states  he  has  supervision  of  the  accounts  of  the 
county  and  municipal  officials.  In  addition,  he  is  frequently 
an  ex-officio  member  of  various  boards  and  may  act  in  other 
capacities  than  those  directly  connected  with  state  finance.* 

iln  some  instances  state  treasurers  have  deposited  funds  in  banks  of 
doubtful  character  and  the  state  has  lost  thereby. 

2  In  Wisconsin  and  Oregon  the  secretary  of  state  acts  as  auditor. 
In  New  Hampshire  the  governor  appoints  a  committee  of  the  executive 
council  and  draws  warrants  on  the  treasury  himself. 

3  In  New  Jersey  and  Tennessee  he  is  appointed  by  the  legislature. 
*See  Chapter  XII,  State  Finance. 


154      STATE  AND  MUNICIPAL  GOVERNMENT 

The  relation  In  practically  all  the  states  the  heads  of  departments  are 
of  depart-*^^  elected.  They  are  elected  at  the  same  time  as  the  governor  and 
mentstothe  ^jj^g  may  claim  coordinate  authority  with  him.    The  governor 

governor  ■^  ^  o 

has  practically  no  control  over  them,  although  some  constitu- 
tions and  statutes  provide  that  the  governor  may  obtain  from 
them  information  in  writing.  In  some  states  they  are  required 
to  make  reports  to  the  governor,  either  at  stated  intervals  or 
when  called  for.  The  governor,  however,  has  practically  no 
power  to  follow  up  these  reports  and  to  compel  action.  As  has 
been  seen,  he  has  practically  no  power  to  remove,  suspend,  or 
discipline  the  elective  heads  of  the  departments.  Moreover, 
he  has  no  power  to  control  the  organization  within  a  depart- 
ment. This  is  regulated  either  by  the  head  of  the  department 
or,  more  usually,  by  statute.  The  governor  maj^  issue  com- 
mands and  directions,  but  the  executive  officers  need  not 
obey  them  unless  ordered  to  do  so  by  the  court  by  a  writ 
of  mandamus.  This  is  admittedly  a  cumbersome  method.  It 
is,  moreover,  applicable  only  to  the  ministerial  duties  of  the 
departments  and  does  not  apply  to  those  functions  requiring 
executive  discretion.  The  relation  between  the  governor  and 
the  heads  of  departments  is  not  an  administrative  relation 
but  a  legal  one.^ 
state  boards  The  Creation  of  state  boards  and  commissions  began  at  about 
the  middle  of  the  nineteenth  century.-  Originally  the  adminis- 
trative activities  of  the  states  were  few.  Little  was  under- 
taken by  the  government  in  the  way  of  administrative  services, 
and  the  greater  part  of  that  little  was  performed  by  the  local 
governmental  bodies.  The  increase  of  population  and  the 
changing  economic  conditions  as  well  as  a  changing  concep- 
tion of  the  duties  and  functions  of  the  state  brought  about  an 
increase  in  the  administrative  activities.  This  was  partly  due 
to  the  feeling  that  business  of  certain  types  should  be  more 

^Sce  J.  M.  Mathews,  Principles  of  American   State  Administration, 

pp.  mS-isS- 

-Ibid.  chap,  viii;  C.  A.  Beard, "Commissions  in  American  Government," 
in  Cyclopedia  of  American  Government,  Vol.  I,  p.  350;  J.  H.  Finley  and 
J.  F.  Sanderson,  American  Executives  and  Executive  Methods,  chap,  xiii; 
F.  H.  White,  "Growth  and  Future  of  State  Boards  and  Commissions," 
in  Political  Science  Quarterly,  Vol.  XVIII,  pp.  631-657. 


and  com 
missions 


STATE  ADMINISTRATION  155 

strictly  regulated.  Beginning  in  finance,  with  regulation  of 
banks  and  other  financial  institutions,  government  regulation 
has  extended  to  insurance  companies  and  to  railroad,  express, 
and  other  public-service  corporations.  Moreover,  countless  laws 
have  been  passed  regulating  the  conditions  in  the  conduct 
of  business,  particularly  of  manufacture.  Industrial  relations, 
conditions  of  employment,  hours,  wages,  and  labor  disputes 
have  all  been  subjects  of  state  legislation.  But  this  alone 
would  accomplish  nothing ;  the  laws  must  be  enforced.  Neither 
the  legislature  nor  any  of  the  existing  departments  was 
equipped  to  perform  this  duty.  Hence  new  commissions  and 
new  boards  were  established  to  keep  pace  with  the  constant 
increase  in  legislation. 

The  second  tendency  brought  about  the  increase  of  the  state 
administrative  departments.  This  was  a  changed  conception  of 
the  function  of  government.  Rightly  or  wrongly,  the  demand 
has  been  made  upon  the  state  that  greater  and  increasing  care 
should  be  given  for  the  public  safety,  the  health  of  the  com- 
munity, the  poor,  and  the  defective,  as  well  as  for  the  con- 
servation of  the  public  resources  and  the  improvement  of  public 
comfort  and  well-being.  In  order  to  accomplish  these  ends  a 
constantly  increasing  number  of  new  boards  and  commissions 
have  been  established. 

It  is  almost  impossible  to  make  an  adequate  or  satisfactory  ciassiflca- 
classification  of  the  services  of  state  boards  and  commissions,  boards  and 
but   the   following   classification   will   give  some   idea   of    the  l^J^f]^' 
varied  duties  undertaken :  ^   ( i )   Industrial.    This  includes  the  basis  of 

services 

boards  of  agriculture  and  horticulture  and  the  inspectors  of 
mines  and  factories.  (2)  Scientific.  Under  this  head  are  found 
the  boards  of  health,  bureaus  of  labor  statistics,  boards  of  sur- 
vey, and  (in  a  few  states)  state  chemists,  or  vaccine  agents. 
(3)  Supervisory.  The  most  important  examples  of  such  boards 
are  the  boards  of  arbitration,  railroad  commissioners,  commis- 
sioners   of    insurance,    banking,    inland    fisheries,    and    game. 

iSee  F.  H.  White,  "The  Growth  and  Future  of  State  Boards  and  Com- 
missions," in  Political  Science  Quarterly,  Vol.  XVIII,  pp.  631-657.  This 
is  also  reprinted  in  P.  S.  Reinsch,  Readings  on  American  State  Govern- 
ment, pp.  222-239. 


156      STATE  AND  MUNICIPAL  GOVERN^MENT 


Classifica- 
tion accord- 
ing to 
powers: 

(i)  Legisla- 
tive 


(2)  Judicial 


(3)  Admin- 
istrative 


Classifica- 
tion ac- 
cording to 
the  extent 
of  powers 


(4)  Examining.  Many  states  require  special  qualifications  for 
certain  professions  and  trades ;  to  apply  these,  examining 
boards  are  created.  Among  the  more  common  are  those  for 
doctors,  pharmacists,  dentists,  pilots,  undertakers,  horseshoers, 
barbers,  and  plumbers,  and  this  by  no  means  exhausts  the  list. 

(5)  Educational.  In  this  category  are  found  the  state  boards 
of  education  and,  in  some  states,  public-library  commissions. 

(6)  Executive.  The  most  important  example  is  probably  the 
state-highway  commission,  which  exists  in  many  states.  But 
in  some  states  we  find  park,  water,  and  sewage  commissions 
and  canal  boards.  The  purpose  of  these  commissions  is  gen- 
erally to  accomplish  some  great  specific  public  work  involving 
engineering  skill.  (7)  Corrective  and  philanthropic.  Under 
this  head  are  classified  the  commissioners  of  charities  and  cor- 
rections, superintendents  of  prisons,  and  hospital  commissions. 
It  will  be  seen  that  this  classification  is  not  free  from  a  certain 
amount  of  overlapping.  Indeed,  the  commissions  themselves 
occasionally  overlap  one  another  in  authority. 

The  commissions  may  well  be  classified  according  to  the 
character  of  the  powers  they  exercise,  and  thus  would  be 
divided  into  administrative,  legislative,  and  judicial  commis- 
sions. Those  commissions  which  issue  rules  and  regulations 
are  properly  classified  as  legislative  commissions.  Thus,  for 
example,  a  state  railroad  commission,  which  determines  the 
rates  to  be  charged  by  the  railroads  within  the  state,  is  really 
exercising  subsidiary  legislative  power.  State  boards  and  com- 
missions which  are  appointed  to  conduct  hearings  and  are 
empowered  to  administer  oaths  and  to  summon  witnesses  are 
exercising  a  quasi-judicial  function.  The  great  bulk  of  state 
commissions  and  boards,  however,  are  purely  administrative  in 
character.  They  supervise,  regulate,  or  actually  conduct  some 
enterprise,  and  are  not  hampered  by  the  rules  which  govern 
judicial  or  legislative  procedure. 

Commissions  may  exercise  their  powers  in  various  degrees.^ 
Many  commissions  are  purely  advisory,  having  the  power  to 
investigate  and  make  recommendations  but  no  power  to  enforce 
or  carry  these  into  effect.    Other  commissions  have  mandatory 

^See  J.  M.  Mathews,  Principles  of  American  State  Administration,  p.  160. 


STATE  ADMINISTRATION  157 

power;  as,  the  boards  of  health,  which,  in  some  states,  have  the 
power  to  make  regulations,  the  violation  of  which  constitutes 
a  penal  offense.^ 

The  decisions  of  state  boards  and  commissions  are  rarely  Conclusive- 

D6S5  of 

final.  Appeal  must  generally  be  provided,  and  the  acts  of  the  admimstra- 
commissions  are  as  a  rule  subject  to  review  by  some  other  ^rnatums' 
body.  In  general,  this  duty  is  given  to  the  courts.  The  courts, 
however,  are  increasingly  reluctant  to  interfere  with  the 
determinations  of  commissions  and  usually  decline  to  substi- 
tute their  judgment  for  that  of  a  state  board  in  the  determi- 
nation of  questions  of  public  policy.-  The  courts,  moreover, 
may  be  given  jurisdiction  merely  over  the  method  by  which 
the  conclusion  was  reached  and  not  over  the  subject  matter. 
Sometimes  it  is  provided  that  no  court  appeal  shall  be  allowed 
from  the  finding  of  a  board  on  the  question  of  fact.  By  other 
methods  as  well  a  general  tendency  is  seen  to  extend  the 
functions  and  strengthen  the  conclusiveness  of  the  determina- 
tions of  such  boards. 

The  internal  organization  of  state  boards  and  departments  internal 
is  practically  always  prescribed  by  the  legislature.    The    board  tion  ofTtate 
itself  is  created  according  to  a  certain  form  or  plan  which  the  ^e^art-^"* 
legislature  has  in  mind,  and  its  organization  and  personnel,  ments; 

■r  ,  •       1    ,  ,  •  •       ;  ,      legislative 

if  not  determined  by  the  constituent  statute,  is  frequently  control 
affected  by  the  annual  appropriation  bills.  So  far  is  this  carried 
that  not  only  is  the  number  of  the  employees  regulated  but  also 
the  number  of  subdepartments  of  the  board,  special  appropria- 
tions are  made  for  the  salaries  of  the  staff  (whose  duties  are 
frequently  determined  by  law),  and  the  exact  sums  are  pre- 
scribed for  the  purchase  of  certain  articles. 

In  some  states,  however,  a  different  tendency  is  recognizable.  Modem 
Sometimes  the  legislature  appropriates  lump  sums  to  the  de-  mTnV^' 
partments  to  be  spent  for  salaries  and  expenses  as  the  depart- 
ment sees  fit.    This  gives  greater  administrative  efficiency,  but 
tends  to  conflict  with  the  canons  of  strict  budgetary  regulation.^ 
Where  the  appropriations  are  itemized,  some  of  the  states  allow 

^Louisiana. 

2 See  J.  M.   Mathews,   Principles   of   American   State  Administration, 
p.  162,  with  cases.  3 See  pages  232-235. 


158      STATE  AND  MUNICIPAL  GOVERNMENT 


Types  of 
departmen- 
tal organi- 
zation with 
elective 
heads : 


(i)  Single- 
headed 
department 


(2)  Multi- 
ple-headed 
department 
elected  by 
the  people 

(3)  Multi- 
ple-headed 
department 
elected  by 
districts 


the  transfer  of  funds  among  the  several  departments  of  the 
same  commission.  In  a  few  states  the  commission  is  given 
the  authority  to  employ  a  certain  staff,  not  exceeding  a  certain 
number,  but  only  very  rarely  is  the  department  or  board 
allowed  the  power  to  create  subdepartments  and  subdivisions 
and  to  fix  salaries.^ 

The  various  types  of  departmental  organization  may  be 
classified  first  under  two  main  heads :  those  in  which  the  head 
of  the  department  is  chosen  by  popular  election  and  those  in 
which  he  is  chosen  by  some  other  method.-  There  are  three 
types  of  departmental  organization  in  which  the  chairman  or 
head  is  chosen  by  popular  election :  The  first  is  the  single- 
headed  department  and  is  the  most  common.  Most  of  the 
executive  departments  which  have  been  examined  in  this  chap- 
ter are  of  this  type ;  for  example,  the  office  of  the  secretary 
of  state,  state  treasurer,  and  so  forth.  The  second  is  the  de- 
partment with  several  heads  elected  by  the  people  of  the  state 
at  large.  This  is  well  illustrated  by  the  boards  of  regents 
of  state  universities.  The  third  is  the  department  of  several 
members  elected  by  districts ;  as,  for  example,  the  railroad 
commissions  and  state  boards  of  equalization.  This  variety 
has  not  proved  satisfactory,  since  too  frequently  the  members 
are  dominated  by  the  local  interests  of  their  respective  dis- 
tricts rather  than  by  the  more  general  interests  of  the  state. 
The  second  type  is  not  very  widely  used,  but  where  found  has 
generally  given  a  measure  of  satisfaction.  The  first  type  is  the 
most  common  and,  on  the  whole,  the  most  satisfactory.  It 
should  be  remembered,  however,  that  with  the  exception  of  the 
attorney-general  few  of  the  important  administrative  depart- 
ments are  now  filled  by  popular  election.  There  are  frequent 
exceptions  to  this  in  many  states,  but  the  general  tendency  in 

^  This  is  done  by  the  New  Jersey  statute  creating  a  bureau  of  shell 
fisheries. 

2See  A.  N.  Hoicombe,  State  Government  in  the  United  States,  pp.  319- 
325  ;  J.  M.  Mathews,  Principles  of  .\merican  State  Administration,  pp.  164- 
168;  L.  A.  Blue,  "Recent  Tendencies  in  State  .Administration,"  in  Annals 
of  the  American  Academy  of  Political  and  Social  Science,  Vol.  X\'III, 
P-  434- 


STATE  ADMINISTRATION  159 

filling  the  more  recently  created  administrative  positions  is 
away  from  popular  election. 

Five  different  varieties  of  the  second  type  of  departmental  Types  of 
organization  may  be  distinguished :  First,  a  department  with  a  tai  organi- 
single  head  appointed  by  the  governor.    This  is  found  in  all  the  noneiectlvr 
states  and  is  becoming  more  frequent.    The  head  of  the  depart-  heads: 

.  .  '^  (i)  Single- 

ment  may  be  appointed  either  with  or  without  the  consent  of  headed 

the  senate  or  executive  council.    Most  experts  in  administration  appointed"  ' 

advocate  the  appointment  of  such  a  chairman  without  requiring  ^^  *^^ 
t^t^  T  '^  governor 

the  consent  of  the  senate.  By  this  method  the  governor  is 
given  a  free  hand  and  responsibility  is  concentrated  upon  him. 
This  type  of  departmental  organization  is  most  common  in  the 
departments  of  banking  and  insurance. 

The  second  variety  of  departmental   organization,   though  (2)  singie- 
rarely  used,  is  found  in  the  departments  of  education  in  cer-  department, 
tain  states;  for  example,  in  New  York.    There  the  legislature  p°fij|g^ 
chooses  the  state  board  of  regents,  which  appoints  the  com-  ^y  the 

governor 

missioner  of  education,  to  serve  during  the  pleasure  of  the 
regent.  Since  in  New  York  a  regent  is  annually  chosen  for 
twelve  years,  the  board  (and  consequently  the  commissioner) 
is  pretty  effectively  taken  out  of  politics.  Generally,  however, 
where  this  type  of  departmental  organization  is  adopted,  the 
governor  rather  than  the  legislature  appoints  the  board,  and  it 
selects  the  commissioner. 

The  third  form  of  organization  was  first  adopted  for  educa-  (3)  Muiti- 
tional,  agricultural,  charitable,  and  public-health  departments,  commissions 
In  it  there  is  an  unpaid  board,  which,  unlike  the  board  in  the  J^ent"^"^ 
second  type  just  discussed,  takes  an  actual  part  and  often  an 
active  one  in  administration.    The  board,  however,  employs  an 
expert,  usually  highly  paid,  to  carry  out  its  policies.  The  extent 
to  which  the  board  controls  the  expert  or  the  expert  influences 
the  board  varies  in  different  states  and  depends  upon   the 
character  of  the  men  concerned. 

The  fourth  is  the  most  common  kind  of  organization  for  (4)  Muiti- 
boards  or  commissions.    In  it  the  members  are  adequately  com-  commissions 
pensated ;  they  are  expected  to  devote  their  entire  time  to  the  ^o"^ing 
duties  of  the  board  and  to  take  an  active  personal  part  in 


i6o      STATE  AND  MUNICIPAL  GOVERNMENT 


(5)  Single- 
headed 
department 
dependent 
upon  an 
advisory 
council 


Relative 
merits  of 
a  commis- 
sioner or 
a  board  in 
state  ad- 
ministra- 
tion 


carrying  out  its  functions  rather  than  merely  to  supervise  them. 
The  secretary  is  a  subordinate  and,  unlike  the  agent  in  the  third 
type,  his  duties  are  confined  to  executing  the  directions  of  the 
board.  Boards  of  this  type  exercise  not  only  administrative  but 
quasi-legislative  power.  Some  of  the  most  obvious  examples 
are  the  railroad  commissions  and  public-service  commissions, 
together  with  the  industrial  commissions  which  have  recently 
been  organized  in  various  states. 

In  the  fifth  type  the  head  of  the  department  is  appointed  by 
the  governor  either  with  or  without  the  consent  of  some  con- 
firming body,  but  his  functions  and  powers  are  conditioned 
upon  the  advice  of  an  advisory  council.  The  first  modern  in- 
stance of  this  was  found  in  INIassachusetts,  in  the  department 
of  boiler  inspection  organized  in  1907,  and  later  in  the  Penn- 
sylvania department  of  labor  as  organized  in  19 13  and  in  the 
organization  of  the  departments  of  health  of  New  York  and 
Massachusetts  in  1913  and  1914.  This  kind  of  organization  has 
much  to  commend  it  in  cases  where  the  functions  involve 
quasi-legislative  powers.  The  councils  hear  the  evidence  and 
make  certain  regulations  or  rules;  there  their  duty  ends.  The 
commissioner,  who  is  an  expert  administrator,  then  carries 
into  effect  or  applies  these  regulations  to  specific  cases  as 
they  may  arrive. 

Most  experts  favor  a  commissioner  rather  than  a  board  for 
state  administration.  The  disadvantages  of  the  board  may 
be  summed  up  as  follows :  ^  ( i )  Frequently  boards  are  com- 
posed of  ex-officio  members  who  give  only  a  part  of  their 
time  and  attention  to  the  work.  (2)  In  case  the  board  is 
composed  of  members  chosen  from  different  sections  of  the 
state,  the  difficulty  of  getting  the  entire  board  together  makes 
frequent  meetings  impossible.  (3)  Boards  are  slow  to  reach 
decisions.  (4)  If  adequate  salaries  are  paid,  the  expense  is 
greater  than  that  of  a  single  commissioner.  If  the  boards  are 
unpaid  or  underpaid,  the  members  will  not  give  the  neces- 
sary attention.    (5)  A  board  is  not  as  responsible  as  a  single 


'J.  M.  Mathews,  Principles  of  American  Slate  Administration,  p.  165; 
L.  A.  Hlue,  "Recent  Tendencies  in  State  Administration,"  in  Annals  of 
the  American  Academy  oj  Political  and  Social  Science,  Vol.  XVIII,  p.  434. 


STATE  ADMINISTRATION  i6i 

commissioner,  since  the  responsibility  is  diffused.  However, 
because  of  this  very  divided  responsibihty  they  are  sometimes 
able  to  carry  through  a  necessary  but  unpopular  policy.  The 
partial  renewal  of  boards  may  guarantee  the  continuity  of  a 
policy,  which  in  some  instances  has  an  advantage.  This,  how- 
ever, is  sometimes  of  dubious  value.  It  may  be  advisable  to 
bring  about  a  radical  change  of  policy.  With  a  board  whose 
membership  can  only  be  changed  gradually  this  is  more  dif- 
ficult than  in  the  case  of  a  single  commissioner. 

Where  the  work  of  the  board  is  of  a  quasi-legislative  char-  Merits  of 
acter,  like  the  making  of  rates,  or  of  rules  and  regulations  sionerT/' 
to  be  applied  in  industry,  a  board  is  better  than  a  commis-  ^oard^udged 
sion.    Likewise,   in  questions  of  policy,  matters   of   taste,   or  character  of 

>^         -^  '  the  work 

questions  which  may  involve  racial  or  religious  feeling  a  board 
has  certain  advantages  over  a  single  commissioner.  On  the 
other  hand,  where  the  duties  of  the  board  are  chiefly  execu- 
tive or  administrative  and  require  promptness  of  decision  a 
commissioner  is  much  to  be  preferred.  It  should  be  remem- 
bered, however,  that  even  where  the  board  type  of  organiza- 
tion is  established,  its  actual  functions  are  often  exercised 
by  the  secretary  or  some  member  of  the  board  or  expert 
employed  by  it. 

The  relation  of  state  boards  and  commissions  to  the  legisla-  Relation  of 
ture  varies.     Over  these  commissions  and  boards  established  commis- 
by   the   constitution   the   legislature    has    little   control.     The  ^ther  de- 
appointment  or  election  of  the  members  may  be  vested  in  the  partments 

.  .     .        of  the  gov- 

legislature  or  in  one  house,  but  the  functions  of  the  commission  emment: 
are  almost  beyond  the  power  of  the  legislature  to  define,  al-  legislature 
though  it  may  lay  upon  the  commission  duties  of  a  sort  similar 
to  those  originally  prescribed.  The  control  which  the  legisla- 
ture exercises  in  such  cases  is  chiefly  over  the  internal  organi- 
zation of  the  commission,  which  may  be  determined  entirely  by 
the  legislature.  Over  those  commissions  established  by  the 
legislature  greater  power  is  exercised.  The  legislature  has  a 
free  hand  in  determining  the  character  of  the  commission,  its 
functions,  and  its  organizations.  It  may  amend  or  abolish 
the  commission  by  legislative  act.  In  neither  case,  however, 
can  the  legislature  exercise  administrative  control  over  the 


1 62      STATE  AND  IMUNICIPAL  GOVERXMEXT 


(a)  The 
governor 


(3)  The 
courts 


policy  or  specific  actions  of  the  commission.  Its  relation  to 
the  commission  is  purely  legislative. 

The  relation  of  the  governor  to  commissions  is  largely  legal. 
There  are  so  many  restrictions  upon  the  governor's  power  of 
appointment,  direction,  and  removal  that  the  commissions  may 
function  almost  as  an  independent  fourth  department.  Espe- 
cially is  this  so  where  discretionary  power  may  be  exercised. 
This  is  on^  of  the  greatest  weaknesses  of  the  administrative 
system  of  the  state — it  prevents  coordination  and  unified 
direction.  Because  of  the  principle  of  partial  renewal  for  com- 
missions, and  long  terms  for  their  members,  it  is  often  prac- 
tically impossible  for  a  governor  to  initiate  and  carry  through 
an  administrative  policy.  These  evils  have  long  been  recog- 
nized, and  important  changes  have  taken  place.  Even  before 
any  structural  reform  or  increase  of  executive  power  took  place 
by  law,  the  position  of  the  governor  as  the  political  leader  often 
gave  him  more  power  of  direction  than  he  theoretically  pos- 
sessed. His  power  of  appointment  and  removal  has  been  greatly 
increased  in  many  states,  and  as  a  result  his  power  of  direction 
has  been  consequently  enhanced.  The  general  tendency  of 
the  movement  to  employ  experts  in  administration  is  still 
further  to  increase  this  power  and  to  provide  for  a  uniform 
administrative  system  under  the  direction  of  the  governor. 

The  courts  exercise  a  very  constant  control  over  administra- 
tive boards  and  commissions.  In  the  first  place  the  courts 
enforce  the  limitations  of  the  national  and  state  constitutions 
upon  the  operations  of  the  commission.  Thus  the  courts  may 
determine  whether  property  is  subject  to  public  regulation, 
and  they  have  consistently  held  to  the  rule  that  all  property 
affected  by  public  interest  was  subject  to  such  regulation.  The 
courts  have  allowed  commissions  to  regulate  those  classes  of 
property  and  those  interests  which  the  legislature  might  regu- 
late. Moreover,  they  test  the  work  of  the  commissions  by  the 
clauses  guaranteeing  due  process,  just  compensations,  and  equal 
protection  of  the  laws,  and  frequently  check  the  activities  of 
certain  enthusiastic  boards.  The  activities  of  the  courts,  how- 
ever, may  be  restricted  in  their  effect,^  and  the  commission  may 


iSee  pages  302-304. 


STATE  ADMINISTRATION  163 

be  vested  with  the  power  to  make  final  determination  of  ques- 
tions of  fact.  Furthermore,  the  courts  are  slow  to  substitute 
their  point  of  view  for  that  of  the  commission.  This  is  true 
where  the  commission  is  charged  with  the  performance  of  a 
discretionary  act.  In  other  instances  appeals  may  be  prose- 
cuted before  the  courts  and  the  work  of  the  commission 
reviewed  or  accelerated.  It  must  be  proved,  however,  that  the 
petitioner  has  a  direct  personal  interest  in  the  decision  of  the 
commission  apart  from  that  as  a  member  of  the  community. 

The  evils  of  the  conditions  described  in  the  previous  pages  Movements 
have  long  been  recognized.    IMovements  to  consolidate  some  of  ize'^the^tate 
the  numerous  boards  and  commissions  began  in  [Massachusetts  tf^^gygtem 
and  New  York  in  1902  and  1901,  respectively,  and  have  spread 
to   other   states.    During   the    first   decade   of    the   twentieth 
century,  however,  not  much  was  accomplished.    Although  there 
were  some  consolidations,  new  creations  were  more  numerous, 
and  while  the  evils  and  inefficiencies  of  the  system  were  recog- 
nized and  attacked,  conditions  grew  worse  rather  than  better. 
In  many  states  special  commissions  were  appointed  to  investi- 
gate   the    actual    conditions    of    state    administration.     These  Efficiency 
bodies,  usually  known  as  efficiency  and  economy  cornmissions,  o^y  cojn'. 
revealed  a   condition  which   although   suspected  and   uncon- 
sciously felt  was  actually  known  only  to  the  active  politicians. 
The  publication  of  their  reports  strengthened  the  hands  of  the 
reformers,  and  demands  became  insistent  that  some  consolida- 
tion and  change  take  place. 

In  191 5  New  York  held  a  constitutional  convention  of  which 
the  Honorable  Elihu  Root  was  chairman.^  The  most  numer- 
ous group  in  this  convention,  known  as  the  "federal  crowd," 

iThe  Bureau  of  Municipal  Research,  New  York  City,  prepared  and 
published  several  very  valuable  treatises  on  state  government :  (i )  " Gov- 
ernment of  the  State  of  New  York:  a  Description  of  its  Organizations 
and  Functions"  (January,  1915);  (2)  "The  Constitution  and  Govern- 
ment of  the  State  of  New  York:  an  Appraisal"  (May,  1015)  ;  (3)  "Bud- 
get Systems"  (June,  1915);  (4)  "State  Administration"  (July,  1915)- 
The  Legislative  Drafting  and  Research  Fund  of  Columbia  University 
prepared  a  valuable  book,  "Index  Digest  of  State  Constitutions,"  which 
although  now  out  of  date  in  many  particulars  still  is  of  great  con- 
venience. The  Proceedings  of  the  Convention  were  published  in  three 
volumes  and  contain  much  of  value  and  importance. 


missions 


1 64      STATE  AND  MUNICIPAL  GOVERNMENT 


The  New 
York  Con- 
stitutional 
Convention 
of  1915 


Other 

movements 
toward 
state  reor- 
ganization : 
the  Illinois 
Administra- 
tive Code 


proposed  and  succeeded  in  getting  the  convention  to  recommend 
certain  conservative  principles  of  reform.  As  regards  state 
administration,  the  convention  proposed  amendments  provid- 
ing for  (i)  the  abolition  of  popular  elections  in  the  case  of 
minor  administrative  officers;  (2)  the  abolition  of  the  power 
of  the  senate  to  confirm  or  refuse  to  confirm  executive  nomi- 
nations; (3)  the  reorganization  of  the  one  hundred  and  fifty 
or  more  separate  administrative  agencies  in  the  seventeen 
departments;  (4)  the  extension  of  the  civil-service  system. 
This  reorganization  and  consolidation,  though  drastic,  was  not 
radical.  It  involved  the  principles  which  had  been  advocated 
not  merely  by  reformers  but  by  experts  in  state  administration. 
The  amendments  proposed  by  the  convention  were  over- 
whelmingly defeated  by  a  popular  vote  of  more  than  two  to 
one.  Nevertheless  the  work  of  the  convention  was  not  without 
value,  and  its  influence  was  far-reaching. 

In  191 7,  largely  due  to  the  energy  of  Governor  Lowden, 
Illinois  adopted  an  administrative  code  which  effected  a  thor- 
oughgoing reorganization.^  Nine  main  departments  were  estab- 
lished: finance,  agriculture,  labor,  mines  and  minerals,  public 
works  and  buildings,  public  welfare,  public  health,  trade  and 
commerce,  registration  and  education.  These  absorbed  the 
functions  of  forty  executive  officers  and  fifty  boards  and  com- 
missions, as  well  as  a  large  number  of  subordinate  officials. 
Each  department  has  at  its  head  a  director,  and  there  are 
about  forty  other  officials  in  charge  of  various  bureaus.  All 
these  officials  are  appointed  by  the  governor,  with  the  consent 
of  the  senate,  for  terms  of  four  years.  The  principal  results  to 
be  expected  are  more  definite  responsibility,  increased  efficiency, 
and  active  coordination.  The  code  fails  to  cover  the  whole  field 
of  state  administration :  none  of  the  elected  officials  are  in- 
cluded ;  certain  state  authorities,  like  the  national  guard,  civil- 
service  commission,  legislative  reference  bureau,  and  so  forth 
are  outside  of  the  new  organization ;  several  boards,  moreover, 
have  only  a  nominal  connection  with  the  department  with 
which  they  are  grouped. 


'Laws  of  1917,  chap.  2.    See  also  J.  A.  Fairlic,  in  American  Political 
Science  Review,  Vol.  XI,  pp.  310-315. 


STATE  ADMINISTRATION  165 

During  the  year  1917^  consolidation  of  the  directors  of  the  other  con- 
state hospitals  was  made  in  North  Carolina,-  and  in  Kansas'  ^°^"^^^'°°^ 
a  board  of  administration  was  created  to  control  all  the  educa- 
tional, benevolent,  and  penal  institutions  of  the  state.  Both 
Kansas  and  North  Carolina  established  state  accounting 
agencies.  In  Vermont^  a  state  board  of  control  was  estab- 
lished, composed  of  the  governor  and  three  other  state  officers, 
to  have  general  supervision  over  all  state  departments.  In 
19 19  eight  governors  recommended  the  consolidation  of  related 
state  offices,  and  considerable  progress  was  made.^  In  Cali- 
fornia and  Oregon,  however,  the  reports  of  the  efficiency  and 
economy  commission  and  consolidation  commission  brought 
little  result.  In  Texas"  a  board  of  control  composed  of  three 
citizens,  appointed  by  the  governor  with  the  advice  of  the 
senate,  was  established.  This  board  abolished  five  state 
agencies  and  boards  of  managers  in  about  fifteen  institutions. 
It  is  organized  into  the  divisions  of  printing,  purchasing,  audit- 
ing, design,  construction,  maintenance  and  appropriations,  and 
eleemosynary  institutions,  and  prepares  the  budget  for  all  state 
offices  and  departments. 

As  a  result  of  the  constitutional  convention  held  in  19 18  Massachu- 
the  legislature  passed  a  law  reorganizing  the  administrative  ^^ 
system  of  Massachusetts."  In  general  it  followed  the  New 
York  law,  but  provided  for  twenty  separate  departments.  To 
this  extent  it  is  not  so  effective  as  the  administrative  code  of 
Illinois,  but  seventy-seven  independent  administrative  units 
were  abolished  by  it  or  placed  under  one  of  the  twenty  depart- 
ments. It  does  not  touch  the  four  elective  officers — secretary 
of  the  commonwealth,  treasurer,  auditor,  and  attorney-general ; 
but  the  heads  of  all  other  departments  are  appointed  by  the 
governor  with  the  consent  of  the  council,  generally  for  a  term 
of  three  years. 

^See  American  Year  Book  for  1917,  pp.  176-177. 

-Laws  of  19 1 7,  chap.  150. 

^Laws  of  IQ17,  chap.  297. 

'*Laws  of  1917,  chap.  32. 

^See  American  Year  Book  for  1919,  pp.  224-227. 

^Laws  of  19 19,  chap.  167. 

■^Acts  of  1919,  chap.  350. 


1 66      STATE  AND  MUNICIPAL  GOVERNMENT 


Idaho 


Consolida- 
tions in 
igai 

Ohio 


Missouri 


New  York 


Probably  the  most  far-reaching  reorganization  which  has  yet 
taken  place  was  accomplished  in  Idaho  in  1919.^  By  this  the 
agencies  of  administration  are  grouped  into  nine  different  de- 
partments. The  head  of  each  department  is  appointed  by  the 
governor  and  is  removable  by  him  at  his  discretion,  and  the 
governor  is  also  given  authority  to  devise  plans  for  cooperation 
and  coordination  and  to  eliminate  duplication.  The  head  of 
each  department  is  empowered  to  prescribe  regulations  for  the 
conduct  of  his  department.  Of  especial  interest  is  the  depart- 
ment of  law  enforcement,  which  is  given  the  power  "to  enforce 
all  the  penal  and  regulatory  laws  of  the  state  in  the  same  man- 
ner and  with  like  authority  as  the  sheriffs  of  counties."  It  also 
has  numerous  special  powers  in  the  way  of  supervision.  In 
19 19  Nebraska  adopted  the  civil-administration  code,  by  which 
six  administrative  departments  were  created.-  Consolidations 
also  took  place  in  Indiana. 

During  the  year  192 1  several  states  took  steps  to  reorganize 
their  administrative  departments.  The  most  thoroughgoing  re- 
organization was  in  Ohio,  where  an  administrative  code  was 
adopted  April  26.'  This  code  does  not  touch  the  offices  or 
functions  of  the  lieutenant  governor,  the  secretary  of  state,  the 
auditor,  the  treasurer,  or  the  attorney-general,  but  groups  the 
other  administrative  activities  into  seven  departments :  finance, 
commerce,  highways  and  public  works,  agriculture,  health,  in- 
dustrial relations,  and  education.  With  three  exceptions  these 
departments  are  presided  over  by  commissioners,  appointed  by 
the  governor  during  his  pleasure,  who  have  the  power  to  appoint 
the  heads  of  the  divisions  of  their  departments.  In  Missouri 
no  general  administrative  code  was  adopted,  but  seven  measures 
were  passed,  making  various  consolidations.  In  New  York  a 
bill  to  reorganize  completely  the  state  administration  was  de- 
feated, but  many  important  consolidations  took  place,  among 
which  may  be  mentioned  the  uniting  of  all  tax-collection  agencies 


1  Sec  American  Year  Book  for  iqig,  pp.  22.!;-226,  and  American 
Political  Science  Review,  Vol.  XIII,  p.  634.  Sec  also  Howard  T.  Lewis, 
in  National  Municipal  Review,  Vol.  VIII,  pp.  216-218. 

-See  American  Political  Science  Reviczv,  Vol.  XIII,  pp.  635-640. 

■■'Ibifl.  Vol.  XV,  pp.  380-3S3. 


STATE  ADMINISTRATION  167 

into  a  state  tax  commission,  the  abolition  of  the  industrial  com- 
mission, and  the  appointment  of  a  single  commissioner.  The 
two  public-service  commissions  of  the  state  were  abolished,  and 
a  special  transit  commission  was  created  for  New  York  City, 
and  a  public-utilities  commission  with  wide  power.  In  all  it  is 
estimated  that  over  two  thousand  sinecures  were  abolished.^ 

^See  American  Political  Science  Review,  Vol.  XV,  p.  385. 


CHAPTER  IX 

FUNCTIONS  OF  STATE  ADMINISTRATION 

The  Enforcement  of  State  Law^ 

Difficulties  The  lax  enforcement  of  law  within  the  United  States  is  not 
enforcement  ^ue  to  want  of  Statutes.  Indeed,  it  has  been  said  that  in  the 
United  States  there  are  "more  laws  and  less  law  than  in  any- 
other  country."  When  it  is  remembered  that  each  session  of 
every  state  legislature  produces  a  substantial  volume  of  statutes 
and  that  local  units  of  government  have  the  authority  and  make 
numerous  by-laws,  it  can  readily  be  seen  that  the  amount  of 
statute  law  in  the  United  States  is  enormous.  INIany  of  these 
laws,  however,  are  badly  drawn  through  haste,  carelessness, 
or  intention.  Not  infrequently  ambiguities  are  inserted  to 
serve  some  sinister  end.  This  is  a  species  of  legislative  black- 
mail. Most  of  the  laws,  not  emergency  measures,  are  supposed 
to  go  into  effect  immediately  upon  their  passage.  Thus  many 
laws  are  violated  through  ignorance.  The  enforcing  officers  are 
not  always  in  sympathy  with  the  laws  which  they  are  required 
to  enforce.  Moreover,  since  the  enforcement  of  the  law  is  quite 
generally  confided  to  the  local  authorities,  laws  may  be  inter- 
preted and  enforced  in  different  ways  in  different  communities. 
As  will  be  explained  in  a  later  chapter,  because  of  the  composi- 
tion of  the  legislature  in  some  states  the  rural  members  may 
pass  laws  affecting  the  urban  populations  in  a  way  not  upheld 
by  public  opinion.  When  juries  fail  to  convict  and  judges 
give  light  or  suspended  sentences,  the  task  of  the  enforcing 
authorities  is  made  increasingly  difficult, 
instru-  State  laws  as  well  as  local  by-laws  are  generally  enforced 

Scement  ^Y  the  policc  in  the  cities,  by  the  constables  in  the  villages, 
of  state  law  ^^id  by  the  sheriffs  in  the  counties.    These  officers  are  all  chosen 
by  local  agencies  and  thus  are  not  responsible  to  the  state 

1  J.  M.  Mathews,  Principles  of  American  State  Administration,  chap.  xv. 

i6S 


FUNCTIONS  OF  STATE  ADMINISTRATION     169 

authorities,  although  they  are  charged  with  the  enforcement  of  independ- 

_,,  ...  .  ...  ence  of 

State  Statutes.  The  state  administrative  authorities  cannot  locai 
appoint  them,  remove  them,  or  discipline  them.  Only  in  a  few  authorities 
states,  and  for  especial  purposes,  have  the  state  administrative 
authorities  any  control  over  them.  The  state  legislature,  it  is 
true,  may  by  statute  attempt  to  control  the  local  police,  and 
by  law  may  vest  the  appointment  of  the  police  commissioner  of 
a  city  in  state  authorities.  This  happens  in  Boston,  Baltimore, 
and  St.  Louis,  but  it  is  the  exceptional  procedure. 

In  almost  every  state  the  governor  is  charged  with  seeing  The 
that  the  laws  are  faithfully  enforced.  He  is  thus  held  respon-  ^°^  " 
sible  for  law  enforcement,  although  actually  he  has  little 
power:  in  a  few  states  he  may  remove  district  attorneys  or 
police  commissioners ;  more  rarely  he  can  remove  a  sheriff .'^ 
But  even  without  legal  power  to  control  the  local  authorities 
he  has  at  his  command  the  power  of  publicity.  In  New  Jersey, 
for  example,  the  governor  or  the  attorney-general  may  notify 
the  mayor  or  chief  of  police  of  any  city  that  the  state  criminal 
law  is  being  violated  in  certain  places;  whereupon  it  shall  be 
the  duty  of  those  officials  to  prosecute  the  guilty  persons. 
Failure  to  take  such  action  within  ten  days  is  declared  a 
misdemeanor." 

In  some  states'   the  governor   is   given   express  power  to  Agents 
appoint  agents  to  enforce  specified  laws.    This  was  especially  by  the 
true  with  regard  to  the  laws  governing  the  sale  of  liquor.    In  g°^^'^°°'^ 
Oregon*  the  governor  may  lay  the   facts  before  the  circuit 
court,  and  if  the  court  finds  that  the  laws  are  not  being  faith- 
fully enforced,  the  government  may  appoint  special  officers  for 
a  limited  period  to  exercise  the  powers  of  sheriffs,   district 
attorneys,  or  constables,  who  act  exclusively  under  his  direc- 
tion.   Idaho  in  19 19  provided  for  a  department  of  law  enforce- 
ment, to  enforce  the  penal  and  regulatory  laws  of  the  state  as 
well  as  to  supervise  the  enforcement  of  certain  other  laws.^ 

iNew  York,  Wisconsin.  J.  M.  Mathews,  Principles  of  American  State 
Administration,  p.  100. 

2New  Jersey  Public  Laws,  iqoi,  p.  366;  quoted  by  J.  M.  Mathews, 
Principles  of  American  State  Administration,  p.  435. 

3  Maine,  Oklahoma,  South  Carolina. 

■^Session  Laws  of  1913,  chap.  180.  ^See  page  166. 


lyo     STATE  AND  MUNICIPAL  GOVERNMENT 


The  militia 


Power  of 
the  gov- 
ernor over 
the  militia 


Dse  of  the 
militia  in 
strikes 


The  ordinary  and  the  ultimate  source  of  law  enforcement 
in  the  state  is  the  militia.  The  state  militia  is  recruited  by 
voluntary  enlistments,  and  since  1916-1917  has  been  partially 
federalized.  Even  before  that  date  it  was  subject  to  federal 
inspection,  but  now  it  may  be  directly  mustered  into  the 
national  military  establishment.  The  members  of  the  state 
militia  meet  at  stated  intervals  in  the  state  armories  and  are 
drilled  and  trained.  Annual  encampments  are  held,  and  occa- 
sionally large  bodies  of  the  militia  are  mobilized  at  a  single 
place  to  give  the  officers  experience  in  handling  considerable 
numbers  of  troops.  The  purpose  of  the  militia  is  to  render 
unnecessary  a  large  standing  army,  or  any  standing  army  under 
state  control,  since  the  latter  is  prohibited  by  the  federal  consti- 
tution. The  militia  is  thus  an  emergency  military  organization 
and  not  a  police  force. 

In  most  states  the  power  to  summon  the  militia  is  in  the 
hands  of  the  governor,  although  the  objects  for  which  he  may 
call  it  out  are  generally  enumerated,  as  in  the  case  of  invasion, 
riot,  or  rebellion,  or  to  enforce  the  laws.  In  practically  all  the 
states  the  summoning  of  the  militia  is  entirely  at  the  discretion 
of  the  governor,  and  he  is  the  sole  judge  of  the  necessity  and  of 
the  use  to  which  it  should  be  put.  From  the  character  of  the 
organization  it  can  readily  be  seen  that  it  is  not  a  proper  police 
force  or  one  suitable  to  perform  customary  police  duty  in  con- 
nection with  the  enforcement  of  ordinary  laws  and  regulations ; 
it  is  rather  designed  as  an  instrument  to  preserve  the  peace 
in  time  of  riot  and  rebellion,  and  as  such  it  has  most  generally 
been  used. 

In  recent  years  the  most  serious  violations  of  the  public 
peace  have  come  from  strikes.  This  has  led  to  the  employment 
of  the  state  militia  in  labor  disputes;  particularly  should  be 
mentioned  the  Colorado  strike  of  1904,  the  copper  strike  in  the 
mines  in  Michigan  during  1913,  and  the  Montana  strike  of 
1914.  In  all  these  instances  the  governor  and  the  officers, 
acting  under  the  guise  of  preserving  peace  and  law,  actually 
exercised  military  power  without  judicial  process.  In  the  Colo- 
rado case  this  was  upheld  in  an  opinion  by  Justice  Holmes, 


FUNCTIONS  OF  STATE  ADMINISTRATION     171 

which  has  already  been  quoted.'  "I'ubHc  danger  warrants  the 
substitution  of  executive  process  for  judicial  process."  The 
use  of  the  militia  in  strikes  is  subject  to  much  criticism.  A  state 
militia  may  be  largely  recruited  from  the  industrial  class, 
whose  sympathies  are  with  the  strikers ;  and  although  no  cases 
have  arisen  where  the  militia  has  refused  to  obey  the  orders 
of  its  superior  officers,  yet  it  is  quite  generally  felt  that  it  is 
contrary  to  good  policy  to  utilize  such  an  organization  for  this 
purpose.  One  of  the  recent  examples  of  the  use  of  a  state 
militia  was  the  summoning  of  the  Massachusetts  state  guard  to 
preserve  order  in  Boston  when  the  usual  law-enforcing  agents— 
the  police — went  on  a  strike. 

The  character  of  the  militia  as  an  organization  and  of  its  state  police 
members  has  led  some  states  to  organize  other  law-enforcing 
bodies.  These  are  variously  named.  One  of  the  oldest  and 
by  far  the  most  famous  is  the  Pennsylvania  Constabulary. 
This  is  a  disciplined,  carefully  organized,  well-trained  body  of 
more  than  two  hundred  men  and  officers.  Although  it  has  a 
military  organization  and  appearance,  the  Pennsylvania  Con- 
stabulary is  an  excellent  police  force.  It  has  been  used  with 
great  advantage  in  strikes,  but  it  also  serves  as  a  continuous 
rural  police,  preserving  order  in  those  districts  where  the  local 
authorities  are  generally  few  and  often  inefficient.  Its  members 
are  well  grounded  in  criminal  law,  and  about  90  per  cent  of 
their  arrests  lead  to  conviction.  It  assists  in  extinguishing 
forest  fires,  enforcing  game  laws,  and  assisting  the  health  of- 
ficers. It  has  afforded  protection  in  cases  of  fire  and  flood  and 
has  proved  one  of  the  most  helpful  agents  for  the  enforcement 
of  law  in  the  United  States. 

Other  state  police  forces  which  have  been  established  are  other 
the  State  Police  of  Massachusetts  and  of  Connecticut ;    the  of  state 
Texas  Rangers  ;  the  New  York  State  Constabulary.  p°""  ^°''"" 

Many  of  the  boards  and  commissions  of  the  administrative  Agents  of 

,  ,      .  .  boards  and 

department  are  given  power  to  make  regulations,   sometimes  commis- 
with  the  force  of  law  and  with  penalties.    To  enforce  these  ®'°°® 
regulations   and   to   carry   out    the    functions   of   the   boards, 

^See  page  145. 


172      STATE  AND  MUNICIPAL  GOVERNMENT 

special  agents  are  often  appointed.  These  agents  should  be 
classified  as  law-enforcing  agents.  In  those  states  where  the 
administration  has  not  been  consolidated  and  the  directive 
power  not  given  to  the  governor,  such  agents  only  add  to  the 
decentralization  of  the  law-enforcing  department.  Where  the 
administration  has  been  centralized,  however,  less  objection 
can  be  found  to  them.  Their  work  varies,  both  in  character 
and  degree.  In  some  states  they  are  merely  supervising  agents, 
in  others  they  have  power  to  arrest  and  prosecute.  In  several 
states  certain  commissions  can  actually  apply  penalties,  but 
generally  the  decree  or  sentence  of  the  commission  or  its  agent 
is  reviewable  by  the  courts. 


The  admin- 
istration of 
education 


The  school 
district 


The  county 
unit 


The  county 
superin- 
tendent 


Education 

One  of  the  very  important  fields  of  state  administration  is 
that  of  education.  Education  differs  from  most  other  public 
functions  in  that  it  is  both  private  and  public.  Like  so  many 
other  functions  of  state  administration  it  is  shared  by  both 
state  and  local  authorities.  The  original  unit  of  education  was 
the  school  district.  This  originated  in  colonial  Massachusetts 
and  spread  westward  until  it  is  found  in  some  form  or  another 
in  about  thirty  different  states.  The  school  district  is  ordinarily 
a  body  corporate,  choosing  a  district  board  (usually  of  three) 
to  whom  are  intrusted  the  provision  for  the  school,  the  appoint- 
ment of  the  teachers,  the  determination  of  the  curriculum,  in 
fact  all  educational  affairs.  This  is  the  extreme  democratic  form 
and,  while  suited  to  primitive  conditions,  is  costly  and  inefficient. 

The  more  common  units  are  the  townships  and  counties. 
About  a  dozen  states,  most  of  them  in  the  South,  have  adopted 
the  county  as  the  unit  for  school  administration,  and  in  ap- 
proximately forty  states,  including  nearly  all  of  those  outside 
of  New  England,  the  county  is  the  unit  of  supervision.  In 
New  England,  however,  the  township  or  the  city  serves  as  the 
unit,  and  there  is  less  supervision  by  higher  authorities  than 
in  other  states. 

The  county  superintendent  of  schools  is  found  in  about  forty 
states.  In  the  majority  of  these  he  is  an  elective  officer  chosen 
along   with    the   sheriff   and   other   county   officers,    although 


FUNCTIONS  OF  STATE  ADMINISTRATION     173 

professional  qualifications  are  required  in  many  states.'  This 
is  unfortunate,  since  the  county  superintendent  should  be  an 
educational  expert,  and  popular  election  is  not  the  best  means 
of  obtaining  a  man  of  such  qualifications.  In  a  few  states, 
however,  he  is  appointed  by  some  county  authorities.  The 
duties  of  the  county  superintendent  are  first,  educational,  such 
as  visiting  the  schools,  advising,  directing,  and  examining  the 
teachers,  deciding  questions  of  controversy,  and  enforcing  the 
compulsory-attendance  laws;  second,  noneducational,  such  as 
the  apportionment  of  state  and  county  funds,  giving  notice  of 
school  elections,  and  so  forth. 

In  spite  of  the  fact  that  the  control  of  the  schools  is  gen-  state 
erally  in  some  local  body,  practically  all  the  states  exercise  ^"p^"'^^'"'^ 
supervisory  powers.  Indeed,  education  is  so  important  in  a 
democratically  governed  state  that  it  is  of  vital  interest  to  the 
state  that  this  function  should  be  properly  performed.  In  a 
few  states  direct  control  is  the  method  employed.  Generally, 
however,  it  is  found  only  in  higher  or  professional  education, 
while  the  lower  or  common-school  education  is  under  the  control 
of  the  local  authorities.  Even  here,  however,  the  state  finds 
it  necessary  to  exercise  supervisory  power. 

A  state  board  of  education  or  some  such  body  is  found  in  The 
about  forty  states.    This  body  is  variously  constituted,  either  admfn/st°ra- 
of  ex-officio  members — which  gives  the  most  unsatisfactory  ^115  0^'"'"' 
results,  since  the  members  are  generally  holding  purely  political  the  state 
offices — or   of    appointed    members.     The   appointive   boards 
generally  give  more  satisfaction.    In  four  states-  they  are  ap- 
pointed by  the  legislature ;    elsewhere,  by  the  governor.     In 
^Michigan,  however,  the  board  is  chosen  by  popular  election 
and  has  little  authority. 

State  boards  of  education  as  a  general  rule  have  supervision  Powers  and 

duties  of 

only  over  the  common-school  system  proper.    In  some  states,  sute  boards 
moreover,  they  have  supervision  only  over  the  special  or  higher 
institutions,  such  as  normal  schools  and  agricultural  colleges. 
In  a  few  states^  they  supervise  both  classes  of  education.    The 

1  Indiana,  Iowa,  Kansas,  Michigan,  Nebraska,  and  Wisconsin. 

2  Connecticut,  New  York,  Rhode  Island,  and  Virginia. 
3New  York,  Oklahoma,  and  Vermont. 


174      STATE  AND  MUNICIPAL  GOVERNMENT 

New  York  board,  known  as  the  Regents  of  the  University  of 
the  State  of  New  York,  the  oldest  in  the  country,  was  created 
in  1784.  It  is  composed  of  twelve  members,  one  of  whom  is 
elected  annually  by  the  legislature  for  a  twelve-year  term. 
This  board  has  wide  powers  and  great  influence.  In  general, 
the  department  of  education  exercises  three  distinct  functions: 
financial  (that  is,  the  appropriation  and  spending  of  funds), 
educational  (that  is,  the  determination  of  the  curriculum  and 
the  inspection  of  the  schools),  and  professional  (that  is,  the 
examining  and  certification  of  teachers). 
The  state  The  actual  educational  work  of  the  board  is  generally  con- 

supenn  en     ^j^^^g^  ^y  ^^  expert.  Variously  named  as  the  state  superin- 
education      tendent  of  education,   the  commissioner  of  education,  or,   in 
Connecticut,   the  secretary  of   the   state  board   of   education. 
Such  an  officer  is  found  in  all  the  states.    In  about  twenty  he 
is  chosen  by  popular  election,  which  is  the  poorest  method  of 
selection,  since   it  practically  always   necessitates   choosing  a 
resident  of  the  state  not  so  much  by  the  wish  of  the  people 
as  by  the  operation  of  political  parties.    In  about  ten  states 
he  is  appointed  by  the  governor ;  in  five,  by  the  board  of  educa- 
tion.   The   superintendent    of   education    should    certainly   be 
removed  from  politics  and  political  influence ;  his  qualifications 
should   be  high  and  carefully  scrutinized   by   the  appointing 
authority ;  and,  while  subject  to  removal,  he  should  be  given 
a  sufficiently  long  term  to  enable  him  to  put  his  policies  into 
effect.    On  the  whole,  election  by  a  board  is  perhaps  the  best 
method  of  choice. 
Functions  of      The  functions  of  the  superintendent  of  education  may  be 
superin-^      classified  as  follows:   (i)  Supervisory.    In  this  class  would  be 
(n'suMr-     P'J^  ^'^  power  to  visit  the  schools,  to  require  reports  from  the 
visory  county  Superintendents  and  other  authorities,  and  the  making 

of  rules  and  regulations  to  carry  into  effect  the  provisions  of 
fj) Advisory  the  school  law.  (2)  Advisory  and  judicial.  In  this  category 
^"  '  '  are  found  his  power  to  advise  the  local  school  authorities  as  to 
the  interpretation  of  the  school  law  and  in  some  instances  the 
^3)  Admin-  powcr  to  decide  appeals.  (3)  .Administrative  and  financial. 
TnrfinaV  These  powers  would  include  the  examining  of  teachers  and 
'^'*'  their  certification,  I  lie  recommendation  of  textbooks,  and  the 


FUNCTIONS  OF  STATE  ADMINISTRATION     175 

distribution  of  state  funds  among  the  various  localities.  The 
actual  influence  of  a  capable  state  superintendent  is  far  greater 
than  a  mere  enumeration  of  his  legal  powers  would  imply. 
His  position  and  influence,  however,  vary  in  different  states, 
so  that  it  is  almost  impossible  to  generalize. 

One  method  which  many  states  have  adopted  to  control  and  Financial 
influence  education  has  been  to  grant  state  aid  to  different  the  state 
localities.^    The  money  raised  by  taxation  is  apportioned  to  to  localities 
the  different  localities  according  to  various  methods.  The  grant 
of  state  aid  is  frequently  conditioned  upon  the  maintenance  of 
a  certain  standard.    To  insure  that  this  is  maintained,  state 
inspection  and  supervision  naturally  follow. 

In  colonial  times  Massachusetts  and  Connecticut  adopted  compulsory 
the  principle  of  compulsory  education.  The  first  modern  law 
was  enacted  by  Massachusetts  in  1852,  and  since  then  the 
principle  has  been  adopted  in  all  the  states.  There  is  the 
greatest  possible  variation  as  to  the  ages  during  which  this 
compulsory  attendance  is  required  and  the  number  of  weeks 
of  school  attendance  which  is  necessary.  The  weakest  point 
of  the  system  lies  in  its  inadequate  enforcement.  In  one  state 
— Connecticut — the  agents  of  the  board  of  education  enforce 
the  law ;  in  the  other  states  it  is  done  by  the  local  authorities, 
truant  officers,  sheriffs,  constables,  or  the  ordinary  police  force. 
Since  children  are  allowed  to  attend  private  schools  there  is 
grave  danger  that  the  spirit  if  not  the  letter  of  the  compulsory- 
attendance  laws  may  be  violated.  In  Connecticut  all  private 
schools  are  required  to  keep  a  register  which  shall  be  open  to 
the  agents  of  the  board  of  education. 

In  about  a  third  of  the  states  textbooks  must  be  supplied  Free 
without  charge,  and  in  other  states  this  plan  is  permitted.  In 
New  England  the  local  authorities  determine  the  character  and 
nature  of  the  textbooks  and  make  contracts  with  the  pub- 
lishers. In  the  other  states  this  is  generally  done  by  the  state 
board.  Two  states,  however, — California  and  Kansas, — have 
undertaken  the  publication  of  their  textbooks. 

Practically  all  states  require  that  teachers  should  obtain  a 
license  granted  as  the  result  of  an  examination  before  teaching. 

iFor  example,  see  Massachusetts,  General  Acts,  1919,  chap.  363. 


176      STATE  AND  MUNICIPAL  GOVERNMENT 

The  train-  Originally  this  examination  as  conducted  in  many  states  by 
supervision  the  local  authorities  was  a  mere  farce.  The  tendency  now 
of  teachers    jg  ^^  ^,gg^  jj^  j.j^g  central  State  board  the  duty  of  examining 

and  certifying  teachers.  Closely  connected  with  this  is  the 
Normal  establishment  of  schools  for  training  teachers.  Some  states 
maintain  but  one  normal  school,  others  have  several.  In  some 
states  the  different  normal  schools  are  under  separate  and 
almost  independent  boards  of  trustees.  The  more  modern 
tendency,  however,  is  to  put  the  control  in  the  hands  of  the 
state  board. 
state  Many  states  maintain  institutions  of  higher  learning.    These 

may  be  professional  or  vocational  schools,  such  as  the  agricul- 
tural colleges,  or  all  branches  of  higher  education  may  be 
combined  in  a  state  university.  The  state  universities  are 
usually  governed  by  a  board  of  trustees  or  regents.  In  the 
majority  of  cases  these  are  appointed  by  the  governor,  although 
in  Illinois  and  iSIichigan  they  are  chosen  by  popular  election. 
The  Middle  and  Western  states  have  been  most  generous  in 
their  appropriations  for  this  class  of  education,  and  the  state 
universities  have  exercised  a  powerful  influence, 
state  Most  states  maintain  state  libraries.    These,  however,  are 

generally  for  the  use  of  the  state  legislature  and  are  not  well 
correlated  with  the  local  libraries.  New  York,  however,  is  an 
exception ;  and  the  New  York  State  Library,  which  is  a  divi- 
sion of  the  Department  of  Education,  not  only  has  charge  of 
all  books,  pamphlets,  records,  and  archives  but  undertakes 
legislative  reference  research^  and  library-extension  work,  and 
maintains  a  library  school. 

Charities 

Chanty  Public  charity  was  at  first  almost  entirely  confined  to  the 

relief  of  the  poor.  In  the  older  states  this  was  at  first  granted 
to  the  local  authorities.  Originally  it  was  little  more  than 
granting  outdoor  relief,  but  as  the  districts  became  more 
settled  and  pauperism  increased,  provision  had  to  be  made 
for  the  maintenance  of  an  increasing  number  of  paupers.    In 

iSee  page  216. 


FUNCTIONS  OF  STATE  ADIMINISTR.\TION     177 

some  communities  the  local  authorities  contracted  with  some  . 
citizen  to  care  for  this  class.  This  process  of  "farming  out" 
the  paupers  was  most  unsatisfactory.  The  poor-master  had 
interest  chiefly  in  his  profits.  During  the  nineteenth  century, 
in  many  of  the  older  states,  poor  relief  came  to  be  vested  in 
the  counties,  whose  authorities  exercised  some  supervision  over 
the  inmates  of  the  town  or  local  institutions.  Although  there 
were  some  improvements,  there  was  little  attempt  to  classify 
or  differentiate  the  unfortunates,  and  a  single  institution  or 
poorhouse  might  contain  paupers,  feeble-minded  persons,  the 
insane,  and  often  delinquents. 

Local  relief  has  in  every  state  been  supplemented  by  state  state 
relief  and  state  supervision.  There  are  two  reasons  for  this.  ^"p"^'^^°'^ 
In  the  first  place  there  developed  a  class  of  people  without  fixed 
residence  for  whose  maintenance  the  towns  were  unwilling  to 
appropriate  money.  In  the  second  place,  when  the  state 
granted  relief  for  these  state  paupers  it  demanded  a  certain 
amount  of  supervision  over  them.  At  first  this  supervision 
was  almost  negligible,  but  gradually  it  became  more  minute, 
and  in  some  instances  the  state  itself  maintained  institutions 
for  the  relief  of  the  state  paupers.  In  general,  this  has  been 
an  improvement.  The  local  authorities  are  frequently  in- 
efficient and  ignorant.  Too  often  their  sole  idea  is  to  main- 
tain rather  than  to  cure.  Moreover,  the  local  authorities, 
whether  private  or  public,  are  less  able  financially  to  meet 
the  burdens  of  their  task,  and  consequently  they  have  called 
upon  the  state  to  supplement  their  means. 

From  many  points  of  view  private  charity,  except  in  the  Private 
case  of  great  catastrophes,  is  better  than  public  charity.  It  in^tTtutions 
is  more  personal  and  more  likely  to  consider  the  peculiarities 
of  each  particular  case.  Moreover,  the  effect  upon  the  com- 
munity of  interesting  a  large  number  of  people  in  charitable 
enterprises  is  good.  Nevertheless,  private  charity  is  often 
undiscriminating  and  unintelligent  and  too  often  increases 
rather  than  diminishes  the  number  of  dependents.  Again, 
successful  private  charities  frequently  spend  beyond  their  re- 
sources and  are  thus  compelled  to  ask  aid  from  the  public 
treasury  for  their  support. 


1 78      STATE  AND  MUNICIPAL  GOVERNMENT 

Should  If  a  private  charitable  organization  receives  public  aid,  it 

c^'ntfes  be  should  indubitably  be  subject  to  some  sort  of  public  control.^ 
^ubiirsu°     There  is  great  danger  in  appropriating  a  lump  sum  to  a  char- 
pervision?     itable  organization  without  guarantee  that  it  will  be  economi- 
cally or  properly  spent.    This  is  all  the  more  dangerous  when 
it  is  remembered  that  not  infrequently  these  state  grants  are 
the  result  of  political  influence.    If  the  policy  of  making  state 
grants  to  private  institutions  is  to  continue,  some  method  of 
control  or  supervision  should  be  employed.    In  Illinois,  for  ex- 
ample, before  charitable  institutions  for  children  can  be  incor- 
porated they  must  be  subject  to  examination  and  approval. 
Oklahoma  has  gone  even  further  and  provides  that  all  public 
institutions,  whether  public  or  private,  whether  receiving  state 
aid  or  not,  shall  be  subject  to  the  inspection  of  state  officials. 
This   subjecting   of   private   charity   to   state   inspection   and 
supervision  now  receives  the  approval  of  experts. 
Local  public      Even  the  public  charities  managed  by  the  local  authorities 
should  b\      need  state  supervision.  Investigations  in  various  states  show  an 
also  subject  appalling  lack  of  intelligent  direction  and  proper  consideration 

to  state  ^^  °  ^ 

supervision  and  reveal  great  diversities.  Vesting  the  management  of  the 
charitable  institutions  in  local  boards  of  trustees  too  frequently 
perpetuates  local  prejudice  and  inefficiency.  At  first  the  state 
authorities  (usually  boards)  were  given  the  power  of  visita- 
tion; but  it  was  soon  found  that  this  was  not  enough,  and  a 
measure  of  direction  and  management  was  given  to  the  state 
authorities.  This  ran  counter  to  the  historical  development 
of  the  work.  In  almost  every  state  both  the  state  institutions 
and,  of  course,  the  local  institutions  were  controlled  by  boards 
of  local  trustees.  These  local  boards,  while  perhaps  more 
familiar  with  the  conditions  and  presumably  able  to  give  more 
of  their  time  and  attention,  did  not  prove  altogether  satisfac- 
tory. Economy  and  efficiency  demanded  some  wider  or  higher 
supervision.    At  first  there  was  an  attempt  to  exercise  this  by 

^This  question  has  been  frequently  discussed  at  the  sessions  of  the 
National  Conference  of  Charities  and  Corrections.  See,  especially,  Pro- 
ceedings for  iQii,  pp.  9,  20;  ibid,  (igoq),  p.  397;  ibid.  (1908),  pp.  18- 
56;  ibid.  (1905),  pp.  434,  494  ;  etc. 


FUNCTIONS  OF  STATE  ADMINISTRATION     179 

legislative  investigations.    These,  however,  proved  of  little  use, 
since  the  members  too  often  regarded  them  as  "junkets." 

In  185 1  Massachusetts  established  a  board  of  alien  commis-  state 

■  r     ^       1  c  boards  of 

sioners   havmg   certam   supervision   over   specihed    classes   01  charities 
paupers,  and  in  1863  the  Massachusetts  State  Board  of  Chari- 
ties was  established.    From  that  time  on  the  system  has  spread 
until  practically  all  the  states  have  a  department  to  supervise 
and,  in  a  measure,  to  control  both  the  state  and  local  charities. 

The  powers  which  these  boards  exercise  are  supervisory.  Functions 
mandatory,  or  both.  In  nearly  all  the  states  east  of  the  Missis-  ^Ipar^tment 
sippi  the  earliest  state  boards  exercised  merely  supervisory  of  chanty 
power.  The  centralized  board  of  control  is  more  usual  in  the 
Western  states,  although  New  York  and  Rhode  Island  had 
boards  of  this  type  in  the  middle  of  the  nineteenth  century. 
The  chief  characteristic  of  the  supervisory  board  is  that  the 
actual  management  of  the  institution  or  charity  is  still  vested 
in  a  local  board  of  trustees.  This  insures  the  services  of  cer- 
tain public-minded  citizens,  but  not  necessarily  of  expert  per- 
sons. The  legal  powers  of  the  supervisory  board  are  slight, 
yet  their  influence,  through  publicity,  is  great.  Actually, 
there  are  now  very  few  states  which  maintain  purely  super- 
visory boards.  In  almost  every  instance  the  success  of  these 
boards  has  justified  giving  them  more  power,  chiefly  in  the 
way  of  veto. 

The  administrative  boards  of  control  which  are  found  in  Administra- 
many  states  are  to  be  distinguished  from  the  supervisory  boards  o7conuoi 
because  of  their  composition.  The  administrative  boards  con- 
tain a  number  of  small-salaried  members  who  presumably  de- 
vote their  full  time.  A  very  real  danger  arises  in  this  type 
that  it  may  be  used  for  political  purposes,  particularly  in  the 
way  of  patronage.  To  prevent  this  Iowa  has  devised  an  almost 
perfect  system  which,  while  vesting  in  the  board  the  appoint- 
ment of  the  superintendents  of  the  different  institutions,  leaves 
to  the  latter  the  appointment  of  the  subordinate  employees. 
The  advantages  of  the  board  of  control  lie  in  the  fixing  of 
uniform  salaries,  the  possibility  of  buying  on  a  larger  scale, 
the  careful  supervision  of  the  financial  administration  of  the 


i8o      STATE  AND  MUNICIPAL  GOVERNMENT 


Correctional 
institutions 


State 
supervision 


Problems 
connected 
with  cor- 
rectional in- 
stitutions: 
(t)  Classi- 
fication 


different  institutions,  and  the  initiation  of  policies  as  the  result 
of  research  and  extended  investigations.  A  danger  lies  in  the 
fact  that  the  board  may  become  bureaucratic,  slow  to  alter 
its  policy,  and,  most  important  of  all,  independent  of  higher 
supervision. 

Correctional  Institutions 

Originally  the  correctional  institutions  consisted  of  the  jails 
maintained  in  the  older  states  by  the  counties  and  supple- 
mented by  a  state  prison.  Until  the  nineteenth  century  there 
was  little  intelligent  interest  shown  in  penology.  The  local 
authorities  made  inadequate  provision  in  their  local  jails  for  the 
inmates,  and  there  was  no  attempt  to  separate  different  classes 
of  offenders — often  the  insane  or  defective  were  confined  in 
the  same  institution  and  no  attempt  was  made  to  separate 
juvenile  offenders  and  those  convicted  of  petty  crimes  from  the 
more  hardened  criminals.  The  sanitary  conditions  of  the  jails 
were  often  wretched. 

State  supervision  began  in  1846  with  the  establishment  of 
the  inspectors  of  the  state  prison  in  New  York,  and  from  that 
date  the  system  was  expanded.  It  generally  functioned  through 
a  board  or  commission  and  at  first,  as  in  the  case  of  charities, 
had  only  supervisory  power.  In  many  states  the  supervision 
of  state  charities  and  state  prisons  was  intrusted  to  the  same 
board.  What  has  been  said  of  the  various  types  of  the  adminis- 
tration of  state  charities  would  apply  to  the  correctional  institu- 
tion. The  same  problems  of  local  trustees  and  state  supervision 
and,  finally,  control  have  been  worked  out  in  this  field  with 
practically  the  same  results  as  in  the  field  of  charity.  The 
modern  tendency  is  now  to  vest  not  only  the  supervision  but  a 
large  measure  of  control  in  the  hands  of  a  state  board  or 
commission. 

Practically  all  the  states  make  some  attempts  at  the  classi- 
fication of  criminals.  The  most  common  classifications  are 
into  male  and  female,  old  and  young,  habitual  and  first 
offenders.  In  many  states,  however,  this  classification  is  car- 
ried further,  and  different  types  of  institutions  are  established, 
like  reformatories,  state  farms,  and  so  forth. 


FUNCTIONS  OF  STATE  ADMINISTRATION     i8i 

It  has  been  found  necessary  to  provide  employment  for  (a)  work 
prisoners.  This  corripulsory  labor  has  a  twofold  advantage :  in 
many  instances  it  accelerates  reformation  and  preserves  disci- 
pline and  it  also  relieves  the  state  of  some  of  the  burden  con- 
nected with  the  prisoner.  The  helpful  results  of  labor  for  the 
prisoner  are  practically  everywhere  admitted,  but  very  grave 
difficulties  and  divergences  lie  in  its  application.  In  some 
states  the  lease  system  is  employed,  by  which  the  labor  of  the 
convicts  is  let  out  to  a  contractor.  This  is  highly  objectionable 
and  is  subject  to  grave  abuses.  A  better  system  is  the  employ- 
ment of  the  convicts  by  the  state  on  state  enterprises.  Where 
these  involve  out-of-door  labor,  such  as  building  roads  or 
working  on  farms,  the  results  have  been  extremely  fortunate. 
Any  system,  however,  of  the  employment  of  convict  labor  is 
bound  to  bring  it  into  competition  with  free  labor  and  thus 
is  subject  to  criticism  and  opposition  from  the  labor  organiza- 
tions. In  many  instances  the  labor  of  the  convicts  is  confined 
to  the  production  of  goods  used  in  the  public  institutions  of  the 
state  or  its  local  divisions.  This  still  involves  indirect  com- 
petition, but  is  probably  the  best  system  which  can  be  devised. 

Criminal  law  usually  provides  punishment  for  specific  crimes,  (3)  Boards 
with  a  maximum  or  minimum  sentence.  This  is  given  by  the  and^paroie 
judge,  whose  only  knowledge  of  the  prisoner  is  derived  from 
the  prisoner's  past  as  disclosed  in  the  trial,  and  at  best  is 
uncertain.  Many  states  adopt  the  system  of  indeterminate 
sentences,  prescribing  a  minimum  and  maximum  and  vesting 
in  some  board  or  commissioner  the  power  to  determine  at 
what  time  the  prisoner  should  be  released.  Another  system  is 
to  release  prisoners  on  their  parole,  requiring  them  to  report 
to  the  authorities  at  stated  intervals.  It  is  for  this  purpose  that 
boards  of  parole  are  appointed.  At  Sing  Sing  prison.  New 
York,  a  system  of  "follow  up"  work  is  undertaken  by  a  staff 
of  social  agents.^  For  less  serious  offenders  many  states  have 
evolved  the  system  of  probation,  according  to  which  a  first 
offender  is  not  sentenced  but  is  placed  upon  probation,  subject 
to  the  direction  of  a  board  or  officer.  These  newer  methods 
of  dealing  with  criminals  are  designed  to  decrease  crime  by 
^See  Mental  Hygiene,  Vol.  Ill,  pp.  65-77. 


1 82      STATE  AND  MUNICIPAL  GOVERNMENT 

effecting  a  reformation  before  the  criminal  habit  is  formed. 
To  insure  success  they  must  be  carefully  and  intelligently 
administered  and  subject  to  most  careful  supervision. 

Public  Health^ 

Early  The  earliest  measures  concerning  public  health  were  in  the 

at  public-  nature  of  quarantines.  The  port  authorities  of  the  principal 
ministration  seaports,  acting  under  general  governmental  authority,  at  a 
very  early  date  took  steps  to  protect  the  health  of  their 
communities  against  the  introduction  of  contagious  diseases. 
These  attempts  were  not  altogether  successful,  and  the  leading 
seaports  of  the  Atlantic  coast — Baltimore,  Philadelphia,  New 
York,  and  Boston — found  it  necessary  to  establish  local  boards 
of  health  in  the  eighteenth  century.  The  earliest  state-wide 
system  of  town  boards  of  health  was  established  by  INIassachu- 
setts  in  1787  and  was  followed  by  Connecticut  in  1805.  The 
first  state  board  of  health  was  instituted  by  Louisiana  in  1865, 
but  this  dealt  chiefly  with  the  quarantine  regulations  at  the  port 
of  New  Orleans.  The  first  state  board  of  health  to  exercise  the 
modern  functions  was  established  by  ^Massachusetts  in  1869. 
organiza-  In  most  States  there  is  a  state  board  of  health,  but  in  some 
health  States  there  are  other  boards  which  perform  analogous  func- 
authonties  ^JQjjg^  ]jj.g  supervision  over  the  disposal  of  sewage,  the  inspec- 
tion of  food  and  drugs,  and  the  safeguarding  of  water  supplies. 
The  size  of  the  board  varies  as  well  as  the  qualifications  of  its 
members.  In  many  states  one  portion  of  the  board  is  ex  officio, 
while  the  other  is  chosen  on  the  basis  of  professional  require- 
ments. In  a  majority  of  the  states  the  members  were  appointed 
by  the  governor.  A  more  recent  tendency  is  to  specify  certain 
special  professional  qualifications,  as  in  the  act  of  1913  in 
New  York,  which  requires  that  the  council  shall  consist  of  six 
members,  of  whom  three  shall  be  physicians,  one  shall  have 
had  training  or  experience  in  sanitary  science,  and  one  shall  be 
a  sanitary  engineer.  INIassachusetts  has  a  similar  council  of 
professionally  trained  experts. 

'  Sec  J.   M.  Mathews,   Principles  of  American   State  Administration, 
chap,  xiv,  with  bibliography. 


FUNCTIONS  OF  STATE  ADMINISTRATION    183 

In  the  majority  of  the  states  the  executive  officer  is  ap-  The 
pointed  by  the  board  itself.  In  some  states  high  professional  officeV^^ 
requirements  are  insisted  upon.^  The  effectiveness  of  the 
health  administration  is  generally  in  proportion  to  the  freedom 
with  which  the  executive  officer  is  allowed  to  handle  adminis- 
trative duties.  On  the  other  hand,  the  framing  of  health 
ordinances  is  such  an  important  function  that  the  advice  of 
the  board  is  highly  desirable.  In  both  New  York  and  Massa- 
chusetts, however,  the  commissioner  overshadows  the  board 
or  council,  while  in  Oklahoma  the  board  consists  of  one 
— the  commissioner — and  in  Pennsylvania  the  council  is 
purely  advisory. 

The  powers  and  duties  of  the  state  boards  of  health  may  powers  and 
be  classified  as  (i)  indirect  or  supervisory,  which  in  gen-  sute^oLds 
eral  is  the  method  by  which  their  functions  are  exercised  in  °^  health 
most  of  the  states;  or  (2)  direct,  that  is,  the  mandatory 
control  of  the  local  boards  or  actual  performance  of  measures. 
Another  classification  would  be  into  (i)  legislative  powers 
(that  is,  the  framing  of  sanitary  regulations),  (2)  judicial 
powers  (that  is,  the  interpretation  of  the  sanitary  laws  and 
codes,  the  issuing  of  warrants,  and  the  summoning  of  wit- 
nesses), and  (3)  administrative  powers.  This  latter  constitutes 
the  bulk  of  the  work  of  the  commission  and  is  generally  per- 
formed by  the  executive  agent.  It  would  include  the  establish- 
ment of  quarantines,  the  inspection  of  public  buildings,  and 
the  abatement  of  nuisances.  A  third  classification  might  be 
according  to  the  nature  of  the  power  exercised,  as  follows: 
(i)  information  and  research,  (2)  licensing  and  examination, 
(3)  prevention  of  disease. 

The  function  of  information  and  research  originally  involved  information 

and  research 

little  more  than  the  collection  of  vital  statistics,  but  it  has  been 
rapidly  expanded.  Special  research  laboratories  are  established 
in  some  states  for  the  purpose  of  determining  the  cause  and 
prevention  of  certain  diseases.    Laboratories  are  maintained 

1  Modern  experience  shows  that  the  health  officer  must  be  more  than 
a  physician  and  more  than  an  engineer — he  must  have  a  training  in  many 
fields.  Some  educational  institutions  have  a  course  of  a  special  character 
for  the  training  of  health  officers. 


1 84      STATE  AND  MUNICIPAL  GOVERNMENT 


Examining 
and  licens- 
ing func- 
tions 


Prevention 
Of  disease 


The  relation 
between 
the  state 
and  local 
authorities 


for  the  manufacture  of  vaccines  and  antitoxins  and  for  bac- 
teriological diagnoses  for  physicians.  In  many  states  the  board 
of  health  is  charged  with  the  dissemination  of  information, 
since  it  has  been  found  that  health  measures  are  of  little  avail 
without  public  cooperation.  Bulletins  are  issued,  lectures  are 
given,  and  even  moving  pictures  are  utilized  to  bring  home 
to  the  population  the  necessity  for  personal  attention  to  health 
for  the  sake  of  the  community.  This  function  is  rapidly  in- 
creasing, and  with  its  increase  rises  the  problem  of  whether 
it  should  be  undertaken  by  the  educational  department  or  the 
department  of  health. 

The  second  function  deals  not  only  with  the  examination  and 
licensing  of  persons  engaged  in  certain  professions  and  occupa- 
tions, which  in  some  states  is  intrusted  to  special  boards,  but 
also  with  the  setting  up  of  standards  of  instruction  for  schools 
which  undertake  to  prepare  persons  for  certain  occupations.^ 

The  third  and  perhaps  the  most  important  function  of  the 
board  of  health  is  the  prevention  of  disease.  In  general  this 
may  be  accomplished  in  three  ways :  ( i )  through  the  establish- 
ment of  a  quarantine,  either  for  the  local  unit  or  for  the  state 
itself;  (2)  by  suppressing  unsanitary  conditions,  which  in- 
volves, perhaps,  the  inspection  of  the  sources  of  water  and 
food  supplies,  the  supervision  of  sewage  disposal,  and  so 
forth;  (3)  by  the  education  of  the  public  in  sanitary  and 
hygienic  measures. 

Until  the  middle  of  the  nineteenth  century  care  of  the  public 
health  was  intrusted  almost  entirely  to  the  local  authorities. 
As  long  as  this  was  satisfactory  there  was  little  demand  for 
state  action  or  control  except  in  the  case  of  maritime  quaran- 
tine. The  growth  of  population  and,  particularly,  its  conges- 
tion made  communicable  diseases  a  greater  menace,  and  the 
danger  of  epidemics  spreading  beyond  a  locality  brought  in 
the  state  authorities.  At  first  state  authority  was  exercised 
only  in  an  advisory  manner.  Researches  were  undertaken, 
their  results  were  communicated  to  the  local  boards,  and  pres- 
sure was  brought  to  bear  through  the  medium  of  pul)licity. 
A  second  step  was  to  require  reports  from  the  local  authorities. 
1  Nurses,  midwivcs,  optometrists,  etc. 


FUNCTIONS  OF  STATE  ADMINISTRATION     185 

A  third  step  was  the  division  of  the  states  into  sanitary  dis- 
tricts and  the  appointment  for  each  district  of  state  inspectors, 
who  had  the  power  to  investigate  and  cooperate  with  the  local 
authorities  and,  in  the  more  advanced  states,  to  take  direct 
action  themselves.  In  about  a  dozen  states  the  state  board 
has  power  to  remove  the  local  health  authorities.  In  general, 
however,  with  the  exception  of  quarantine  regulations,  the  state 
boards  are  still  largely  advisory  or  supervisory  and  have  little 
mandatory  power.  The  modern  tendency,  however,  is  to  in- 
crease the  power  of  the  central  authorities.  In  those  states 
where  this  is  done  great  satisfaction  has  resulted. 

Labor-Law  Administration 

The  departments  of  administration  just  described  have  been  changing 
found  in  one  form  or  another  since  the  establishment  of  state  cerning  the 
and  local  government.    The  regulation  of  industrial  relations  sutTregu- 
and  the  whole  law  of  labor  is  a  modern  development.    Until  Nation 
well  into  the  nineteenth  century  the  doctrine  of  noninterfer- 
ence was  firmly  held  throughout  the  United  States.    Business 
and  industry  and  their  relations  to  their  employees  were  con- 
sidered outside  of  the  sphere  of  public  regulation.    Only  in 
those  industries  which  were  affected  with  the  public  interest, 
like  railroads  and  warehouses,   did  the  state  intervene,  and 
then  only  to  the  extent  of  regulating  the  rates  or  prescribing 
the  services.    The  state  next  attempted  regulation  of  business 
for  public  safety  and,  finally,  for  the  laborer  himself. 

Typical  of  the  changed  spirit  are  the  laws  which  attempt  Regulation 
to  regulate  industries  on  the  grounds  of  health.    The  pursuit  on  the  score 
of  certain  industries  in  some  states  is  absolutely  forbidden ;  °^  ''^^"'^ 
for  example,  the  manufacture  of  matches  out  of  white  phos- 
phorus.   Other  industries  which  are  regarded  as  dangerous  are 
subject  to  special  laws  limiting  the  hours  during  which  the 
workman  may  be  employed ;  for  example,  Colorado  limits  the 
number  of  hours  for  employment  of  miners  underground.  Other 
laws  provide  special  regulations  for  different  occupations;  as, 
for  example,  the  requirement  that  appliances  shall  be  installed 
in  certain  industries  to  eliminate  or  diminish  the  harmful  dust. 


1 86      STATE  AND  MUNICIPAL  GOVERNMENT 


Workmen's 
compensa- 
tion laws 


More  general  regulations  are  of  the  type  which  provide  for 
the  proper  sanitary  conditions  for  the  employees,  such  as  those 
which  fix  the  number  of  cubic  feet  of  air  for  each  employee 
in  order  to  prevent  overcrowding,  and  the  regulations  which 
require  the  installation  of  proper  toilet  and  sanitary  appliances. 
Regulation        Another  class  of  labor  laws  deals  with  the  safety  of   the 
on^the^core  employee.    Among   these   may   be   mentioned    the   regulations 
of  safety       requiring   the   installation   of  suitable   fire-escapes,    automatic 
sprinklers,  and  other  devices  to  minimize  the  danger  of  fire. 
Another  class  of  laws  deals  with  the  protection  of  the  work- 
men against  accidents  and  requires  the  installation  of  safety 
^  •     appliances  and  guards   for  moving   or  dangerous   machinery. 

In  spite  of  these  laws  accidents  happen.  According  to  the 
old  doctrines  of  English  common  law  the  employer's  liability 
for  these  accidents  was  very  strictly  limited.  He  was  not  held 
responsible  for  accidents  which  resulted  from  the  workman's 
own  carelessness.  Moreover,  the  workman  was  supposed  to 
assume  all  risk  of  accidents  for  which  the  employer  could  not 
be  held  responsible  on  account  of  faulty  machinery.  IMost 
far-reaching,  however,  was  the  fellow-servant  rule,  by  which 
the  workmen  were  supposed  to  assume  the  risk  of  accident 
resulting  from  the  carelessness  or  negligence  of  their  fellow 
employees.  At  the  time  when  the  English  courts  developed 
these  doctrines  manufacturing  was  in  its  infancy.  It  was  often- 
times confined  to  the  home  of  the  employer,  and  the  employers 
were  few.  In  such  conditions  there  may  have  been  some  justi- 
fication for  these  rules.  With  the  development  of  the  factory 
system,  however,  necessitating  the  employment  of  thousands 
of  workmen  in  a  single  factory  who  had  little  or  no  relation 
one  with  another  and  were  unknown  to  each  other,  the  fellow- 
servant  rule  seemed  absurd.  Moreover,  an  industrial  accident 
— whether  the  result  of  the  employer's  negligence  or  the  work- 
man's carelessness  or  a  totally  unavoidable  accident — pre- 
vented the  workman  from  earning  his  wages  and  might  possibly 
cause  him  or  his  family  to  become  a  public  charge.  To  prevent 
this  many  state  legislatures  passed  laws  repealing  the  old 
English  common  law  rules  and  hoUling  the  employer  finan- 
cially liable.    In  some  states — for  example.  New  York — these 


FUNCTIONS  OF  STATE  ADMINISTRATION    187 

laws  were  at  first  held  unconstitutional,  but  by  amendments 
to  state  constitutions  and  by  the  changed  opinion  of  the  judges 
almost  all  the  states  have  been  able  to  pass  laws  of  this  type. 
Practically  every  state  requires  the  manufacturer  to  insure  his 
workmen  against  accidents  or  else  provides  simple  and  direct 
methods  by  which  an  injured  workman  may  obtain  compensa- 
tion. Manufacturers  are  now  quite  generally  insuring  them- 
selves against  such  accidents,  the  cost  being  charged  along  with 
taxes,  wages,  and  the  other  expenses  of  the  business  and 
ultimately  added  to  the  price  of  the  article.  This  distributes 
the  burden  of  supporting  or  compensating  injured  workmen 
throughout  the  entire  community,  instead  of  compelling  the 
manufacturer  to  bear  it  all  or  forcing  the  workman  or  his 
family  to  become  a  public  charge. 

In  some  states  the  movement  has  gone  still  further,  and  Health 
commissions  are  appointed  looking  toward  the  establishment  ^"^""^  '^'^ 
of  some  form  of  insurance  against  loss  of  time  because  of  dis- 
ease or  sickness.    So  far  no  state  has  yet  adopted  such  a  law, 
although  in  19 19  in  New  York  a  bill  for  this  purpose  passed 
the  senate,  but  did  not  come  to  vote  in  the  assembly. 

The  regulation  of  hours  of  labor  began  "with  limitations  upon  Regulation 
the  hours  at  which  women  might  work  in  factories  or  at  certain  of  ia*bo? 
employments.  In  many  states  these  hours  are  limited  to  not 
more  than  forty-eight  hours  a  week,  or  eight  a  day.  In  some 
states  the  night  labor  of  women  is  prohibited.  These  limita- 
tions upon  the  hours  of  women's  labor  are  absolute,  and  to 
employ  them  beyond  the  specified  number  of  hours  or  during 
the  prohibited  times  subjects  the  employer  to  a  fine.  Some 
states — for  example,  Oregon — have  established  the  ten-hour 
day  for  men  in  all  industries.  This  is  not  an  absolute  prohibi- 
tion, however,  since  manufacturers  may  employ  their  workmen 
for  more  than  ten  hours,  provided  they  give  additional  com- 
pensation. It  has  been  noted,  under  the  regulations  for  health, 
that  in  unhealthy  and  dangerous  occupations  the  hours  of 
workmen  have  long  been  limited. 

In  most  states  there  are  regulations  concerning  the  employ-  chiid  labor 
ment  of  children.    The  employment  of  children  in  certain  occu- 
pations,   such   as    mining,    is    absolutely    prohibited    in    some 


1 88      STATE  AND  MUNICIPAL  GOVERNMENT 

states.^  In  others  there  is  a  minimum  age,  usually  fourteen, 
below  which  children  may  not  be  employed  in  factory  or  mer- 
cantile occupations.  Yet  in  other  states  children  above  four- 
teen but  below  a  certain  age,  usually  sixteen,  may  be  employed 
for  part-time  work,  provided  they  attend  continuation  schools 
for  a  certain  number  of  hours  a  week.  During  19 19  Congress 
attempted  to  strengthen  the  hands  of  the  states  by  the  passage 
of  the  second  child-labor  law,  which  set  a  minimum  age  of 
fourteen  for  the  employment  of  children  in  factories,  of  sixteen 
for  mines  and  quarries,  and  a  prohibition  upon  the  employment 
of  children  in  night  work  or  for  more  than  six  days  a  week. 
To  accomplish  this  Congress  invoked  the  taxing  power. 
Minimum  Fourteen  states  and  territories  have  passed  laws  providing 

for  the  establishment  of  a  minimum  wage  for  the  employment 
of  women.  In  some  states — New  Jersey,  for  example — this 
wage  is  fixed  by  the  legislature  and  is  compulsory  upon  the 
employer.  In  ^Massachusetts  and  other  states  a  commission 
investigates  the  occupation  and  recommends  a  minimum  wage. 
Although  the  Massachusetts  system  is  dependent  for  its  en- 
forcement upon  publicity,  yet  there  is  no  instance  where  the 
recommendation  has  not  been  complied  with. 
Conciliation  The  relations  of  the  employers  to  the  employees  have  also 
tion  ^  ^  ^  '  been  subjects  of  state  legislation.  The  frequent  occurrence  of 
strikes  and  lockouts  has  led  many  states  to  adopt  and  establish 
boards  of  conciliation  and  arbitration,  the  purpose  of  these 
boards  being  largely  remedial,  although  in  some  instances  it  is 
preventive.  In  the  latter  type  an  industrial  dispute  may  be 
submitted  to  the  board  before  a  strike  has  been  declared ;  the 
board  hearing  both  sides  may  make  recommendations.  In  the 
former  type  the  board  does  not  act  until  a  strike  has  actually 
taken  place. 
Administra-  This  revicw  of  labor  legislation  is  by  no  means  comprehen- 
labor  laws  sive.  Different  states  have  at  various  times  passed  and  are 
passing  labor  laws  of  all  sorts.  The  whole  system  of  labor 
legislation  grew  or  developed  piecemeal,  and  its  administration 
bears  evidence  of  such  development.  Some  of  the  laws — for 
example,  those  regarding  public  health — were  administered  by 
'  New  Jersey  and  North  Dakota. 


FUNCTIONS  OF  STATE  ADMINISTRATION     189 

the  local  and  state  boards  of  health.  For  other  laws  special 
factory  inspectors  were  appointed,  while  still  others  (like  the 
minimum- wage  law)  caused  the  creation  of  special  commis- 
sions. Thus,  not  only  is  the  administration  of  labor  legislation 
shared,  like  other  functions  of  state  administration,  between 
the  local  and  state  authorities  but  there  are  a  multitude  of 
independent,  uncorrelated  agencies  engaged  in  such  administra- 
tion. In  some  states  the  general  process  of  consolidation  which 
has  been  noted  in  other  fields  of  state  administration  has 
taken  place  in  the  administration  of  labor  laws.  Thus,  in  the 
Massachusetts  reorganization  act  of  1919  five  different  agencies 
were  consolidated  in  the  department  of  labor  and  industries 
and  were  placed  under  a  commissioner,  aided  by  an  assistant 
commissioner  and  three  associate  commissioners.  There  still 
remains  a  special  department  for  industrial  accidents,  but  the 
tendency  toward  consolidation  is  very  strong. 

Agriculture 

In  some  states  the  regulations  and  boards  for  the  supervision 
and  encouragement  of  agriculture  are  even  more  varied  than 
those  for  the  industrial  wage-earners.  It  would  be  almost  im- 
possible to  make  a  complete  catalogue  of  all  the  agricultural 
activities  in  all  the  states,  but  certain  activities  may  be  enu- 
merated: (i)  Statistical,  educational,  and  research.  This  group 
of  activities  includes  the  collection  of  statistics,  the  holding 
and  supervision  of  farmers'  institutes  and  fairs,  the  analysis  of 
soils  and  fertilizers,  the  registration  of  live  stock,  and  the  study 
and  suppression  of  animal  and  plant  diseases.  (2)  Inspection. 
This  work  covers  the  inspection  of  dairies,  dairy  products, 
herds,  and  meat  products,  and  the  grading  of  cotton,  fruits, 
and  other  crops.  (3)  Conservation.  This  includes  the  preser- 
vation and  propagation  of  fish  and  game,  the  conservation 
of  the  natural  resources  (especially  the  forests),  the  drain- 
age of  swamps,  and  the  establishment  of  projects  for  irrigation. 
(4)  Supervision  and  examination.  These  functions  include  the 
supervision  of  public  warehouses  and  markets,  the  regulation 
of  cold  storage,  the  examination  and  licensing  of  veterinarians. 


190      STATE  AND  IMUNICIPAL  GOVERNMENT 

Adminis-  Like  the  labor  laws,  the  laws  concerning  agriculture  developed 

a^gencies  piecemeal,  and  frequently  new  officers  or  agencies  were  ap- 
pointed for  each  law.  The  general  tendency  now  is  to  con- 
solidate and  correlate  these  various  activities  in  a  single 
department.  This  was  accomplished  by  the  reorganization  law 
of  ]\Iassachusetts  in  19 19,  by  which  a  commissioner  and  an 
advisory  board  of  six  took  over  the  administration  of  this  most 
varied  department.  There  still  remains,  however,  in  several 
states  a  department  of  conservation,  which,  in  Massachusetts, 
has  charge  of  matters  connected  with  forestry,  fisheries  and 
game,  and  animal  industry. 


Regulation  of  Corporations 

Supervision       The  powcr  to  create  a  corporation  is  a  governmental  power. 

tions'^^"'^^"  Originally  this  Vv-as  exercised  by  the  state  legislatures,  which, 
by  special  acts,  granted  charters  of  incorporation  to  different 
groups  desiring  such  a  status.  The  decision  of  the  Supreme 
Court  in  1819  in  the  Dartmouth  College  case  established  the 
rule  that  a  charter  of  incorporation  was  a  contract  and,  once 
granted,  could  not  be  altered  or  amended  except  by  mutual 
consent  without  violating  the  prohibition  in  the  Federal  Con- 
stitution. Many  states  at  once  placed  restrictions  in  their  con- 
stitutions, declaring  that  no  legal  charters  could  be  granted 
unless  subject  to  alteration  or  amendment  by  the  legislature, 
and  all  states  in  one  way  or  another  exercised  administrative 
control  and  supervision  over  certain  types  of  corporations. 
As  corporate  organization  became  more  and  more  common  the 
demand  for  greater  regulation  and  control  grew  stronger,  until 
in  most  states  corporations  of  all  sorts  are  subject  to  some 
sort  of  supervision  and  corporations  of  certain  types  to  constant 
and  unlimited  supervision  and  control.    > 

General  Most  States  have  abandoned  the  practice  of  granting  charters 

forcoVora-  by  Special  acts  of  the  legislature  and  have  passed  general  laws 
by  which  charters  are  granted  according  to  certain  definite 
principles  for  certain  purposes.  The  issuance  of  such  charters 
of  corporation  was  usually  vested  in  (he  secretary  of  state. 
With   the  increase  in  the  number  of  incorjiorations,  however. 


tions 


FUNCTIONS  OF  STATE  ADMINISTRATION     191 

special  agencies  were  created — first,  a  commissioner  of  cor- 
porations and  then  various  commissioners  to  supervise  and 
control  certain  definite  types  of  corporations.  There  is  no 
general  type  of  administrative  organization,  yet  without  at- 
tempting to  enumerate  all  the  different  varieties,  the  follow- 
ing classification  will  cover  the  most  important  classes  of 
corporations  and  methods  of  control. 

The  business  of  life  insurance  and  banking  was  among  the  Banking 
earliest  types  of  corporations  subject  to  state  regulation.  In  insurance 
order  to  make  certain  that  sound  financial  principles  were 
adopted  by  these  corporations,  the  state  established  elaborate 
laws  regulating  the  organization,  the  class  of  securities  in  which 
the  resources  of  the  corporation  might  be  invested,  and  the 
system  of  accounts  which  must  be  followed.  The  supervision 
of  banks  and  insurance  companies  is  constant  and  painstaking. 
It  is  generally  under  the  direction  of  a  superintendent  of  insur- 
ance or  a  commissioner  of  banks,  assisted  by  a  staff  of  exam- 
iners, who  receive  the  reports  of  the  institutions  and  sometimes 
make  actual  physical  examinations  and  audit  the  books. 

With  the  increase  of  corporations  there  has  been  an  enormous  supervision 
development  in  the  sale  of  the  securities  issued  by  these  cor- 
porations— stocks,  bonds,  notes,  and  other  obligations.  In 
order  to  protect  the  investing  public  certain  states,  beginning 
with  Kansas  in  19  u,  supervise  the  sale  of  such  securities,  for- 
bidding it  unless  an  officer  (in  Kansas  the  bank  commissioner) 
is  convinced  that  the  company  has  some  tangible  assets  be- 
hind it  and  that  the  public  has  some  information  concerning 
it.  This  does  not  mean  that  the  state  in  any  way  guarantees 
the  securities  of  the  company,  but  merely  that  the  public  is 
protected  against  the  sale  of  worthless,  fraudulent,  or  wildcat 
securities. 

The  great  development  of  the  railroads,  and  the  dependence  Regulation 
of  communities  not  simply  upon  them  but  upon  urban  means  utilities 
of  transit,  created  a  demand  for  state  regulation  in  order  that 
the  public  might  receive  adequate  service  at  reasonable  rates. 
The  right  of  the  state  to  regulate  such  utilities  was  upheld  in 
1876.^  Closely  allied  with  railroad  regulation  was  the  regulation 

^See  Mnnn  v.  Illinois,  94  U.  S.  113. 


192      STATE  AND  MUNICIPAL  GOVERNMENT 


Regulation 
of  railroads 


Regulation 
of  other 
public 
utilities 


of  warehouses  and  grain  elevators,  while  in  the  cities  the  regu- 
lation of  public  utilities,  like  gas,  electricity,  telegraph  and 
telephone  companies,  was  undertaken. 

All  states  have  a  railroad  commission  or  commissioners. 
This  agency  is  charged  with  the  supervision  of  the  railroads  and 
in  some  cases  with  the  regulation  of  the  rates.  More  generally, 
however,  the  rates  are  fixed  by  act  of  state  legislature  or  by  the 
charters  of  incorporation.  In  some  states,  however,  the  railroad 
commission  is  given  authority  after  investigation  to  fix  rea- 
sonable rates.  In  so  doing  the  railroad  commission  may  come 
in  conflict  with  the  Interstate  Commerce  Commission  of  the 
United  States.  In  such  cases  it  has  been  held  that  while  states 
might  prescribe  intrastate  rates  they  had  no  control  over  inter- 
state rates,  and  even  the  intrastate  rates  could  not  be  deter- 
mined to  the  disadvantage  of  the  interstate  rates.^  When  the 
railroads  were  operated  by  federal  authority  during  the  World 
War  the  states  lost  still  more  control  over  the  regulation  of 
rates,  and  even  after  the  war  the  Interstate  Commerce  Com- 
mission, relying  upon  the  Shreveport  decision,  fixed  intrastate 
rates  contrary  to  the  desires  of  state  railroad  commissions  and 
acts  of  state  legislatures.  In  some  states  the  regulation  of  rail- 
roads has  developed  so  far  as  to  supervise  the  character  and 
the  amount  of  securities  which  the  railroads  are  allowed  to 
issue  and  to  make  an  appraisal  of  the  physical  value  of  their 
property.  The  reason  for  this  is  that  such  matters  affect  the 
determination  of  just  and  equitable  rates. 

Practically  all  the  states  have  one  or  more  commissions  for 
the  regulation  of  public  utilities,  such  as  gas,  electricity,  and 
street  railways.  These  commissions  may,  like  the  INIassachu- 
setts  Gas  and  Electric  Lighting  Commission  of  1885,  regulate 
the  issuance  of  securities  or  prohibit  the  construction  of  unnec- 
essary works,  and  have  advisory  powers  concerning  the  rates 
charged  for  service.  The  Wisconsin  law  goes  even  further 
and  allows  the  commission  to  make  a  physical  valuation  of  the 
plants  under  its  supervision.  Some  power  is  given  these  com- 
missions to  fix  the  rates  which  may  be  charged.  By  the  reor- 
ganization act  of  1 919,  Massachusetts  consolidated  tlie  Pul)lic 

^See  the  Shreveport  case  (1914),  234  U.  S.  342. 


FUNCTIONS  OF  STATE  AD:MINTSTRATI0N     193 

Service  Commission  and  the  Gas  and  Electric  Light  Commis-  Massachu- 

•      •         setts  rcor- 

sion  into  one  department  of  public  utilities.    This  commission  ganization 
consists  of  a  board  of  five  and  exercises  the  functions  of  the  ^^^ 
previous  boards. 

Other  Departments 
It  has  been  pointed  out  in  previous  sections  that  the  states  Public 

works 

undertake  certain  important  public  works,  like  the  construc- 
tion of  highways,  the  improvement  of  waterways,  as  well  as 
the  building  and  management  of  state  institutions.  This  branch 
of  administration  involves  technical,  engineering,  and  busi- 
ness skill.  In  most  states  these  functions  were  originally  dis- 
tributed among  a  variety  of  state  agencies.  The  tendency  now 
is  to  consolidate  them  into  a  single  department,  on  the  theory 
that  the  state  acting  through  a  single  department  can  secure 
a  higher  grade  of  service  and  supervise  its  public  works  to 
better  advantage.  Without  doubt  this  is  generally  true,  yet 
cases  are  not  wanting  where  special  departments,  because  of 
their  interest  and  zeal,  have  been  fully  as  efficient  as  a  single 
centralized  department. 

All  the  states  have  special  departments  of  finance  and  taxa-  Finance  and 

1  -11  1  taxation 

tion.  The  question  of  taxation,  however,  is  closely  connected 
with  the  legislative  power  of  the  state  and  will  be  treated  in  a 
special  chapter. 

The  foregoing  survey  does  not  attempt  to  include  all  the  Misceiia- 

...  .    ,   neous 

varied  branches  of  state  administration.  In  many  states  special 
commissions  or  boards  have  been  created  for  special  purposes, 
like  the  building  of  a  state  capital  or  the  consolidation  of  the 
state  laws.  There  are  art  commissioners,  city-planning  com- 
missioners, and  supervisors  of  the  officials  of  local  areas.  It 
would  be  almost  impossible  to  enumerate  all  the  permanent 
and  special  boards  and  commissions  which  are  in  existence. 
The  number  is  extremely  large,  and  their  work  is  oftentimes 
uncorrected  and  uncoordinated.  The  general  tendency,  how- 
ever, is  to  consolidate  and  unify  state  administrative  agencies ; 
but  although  this  has  gone  to  a  considerable  extent  in  some 
states,  the  number  of  administrative  agencies  is  still  far  too 
large  and  their  functions  are  ill  defined. 


CHAPTER  X 


THE  STATE  LEGISLATURE 


The  impor- 
tance of 
the  state 
legislature 


The  state  legislature  occupies  the  most  fundamental  and 
important  position  in  the  framework  of  state  government.  It 
is  the  mainspring  of  the  state  activities.  Its  action  must  gen- 
erally be  invoked^  in  the  revision  of  the  state  constitution  ;  that 
is,  amendments  to  the  state  constitution  are  framed  and  passed 
by  the  state  legislature  before  being  submitted  to  the  people. 
Even  the  question  of  a  convention  to  revise  the  state  constitu- 
tion must  be  considered  in  some  form  or  another  by  the  legis- 
lature. The  state  legislature  is  the  lawmaking  branch  of  the 
government.  It  controls  the  civil  law;  that  is,  it  makes  rules 
governing  real  and  personal  property,  contracts,  inheritance, 
corporations,  and  all  other  civil  matters.  It  enacts  the  criminal 
law  of  the  state;  that  is,  it  determines  what  actions  of  its 
citizens  are  subject  to  punishment  by  fine,  imprisonment,  or 
even  death.  It  has  supreme  financial  power  in  that  it  levies 
taxes  and  makes  appropriations.  INIost  important  of  all,  the 
state  legislature  determines  the  use  of  the  police  power  of  the 
state;  that  is,  it  enacts  regulations  governing  the  health,  morals, 
general  welfare,  and  convenience  of  the  citizens.  This  is  a 
far-reaching  power  and  is  limited  only  by  the  specific  prohibi- 
tions in  state  and  Federal  constitutions  as  interpreted  and 
applied  by  the  courts.  The  actions  of  the  state  legislature,  as 
has  been  said,  follow  the  citizen  from  his  birth  to  his  death, 
and  even  after  death.  His  birth  is  registered  by  state  law; 
his  education  is  determined  by  state  law ;  he  is  guarded  and 
limited  by  state  law  in  the  occupations  in  which  he  may  engage ; 
his  property  is  taxed,  his  marriage  regulated,  his  savings  pro- 
tected, his  life  supervised  by  the  police  regulations  made  by 

'  Amendments  prnposcrl  by  the  initiative  do  not  as  a  rule  have  to  be 
submitted   to   the  legislature. 

•94 


THE  STATE  LEGISLATURE  195 

state  law.  If  he  commits  a  crime  the  law  determines  his 
punishment  by  fine  or  imprisonment  or  even  by  execution, 
while  after  his  death  the  state  officials  supervise  the  execution 
of  his  will. 

The  state  legislature  has  inherent  legislative  power.  The  omnipo- 
Congress  of  the  United  States  has  only  delegated  power.  By  state 
that  is  meant  that  Congress  may  legislate  only  in  those  fields  legislatures 
which  the  Constitution  gives  to  it.  The  state  legislature,  on 
the  other  hand,  may  pass  any  law,  on  any  subject  or  in  any 
field,  which  is  not  explicitly  denied  to  it.  Originally  this  field 
for  state  legislation  was  wide.  Thus,  in  the  original  constitu- 
tion of  Massachusetts^  the  grant  reads:  "And  further,  full 
power  and  authority  are  hereby  given  and  granted  to  the  said 
general  court,  from  time  to  time  to  make,  ordain,  and  estab- 
lish, all  manner  of  wholesome  and  reasonable  orders,  laws, 
statutes,  and  ordinances,  directions  and  instructions,  either 
.with  penalties  or  without.  .  .  ."  The  Federal  Constitution  and 
the  extravagant  behavior  of  some  state  legislatures  have  led  to 
the  limitation  of  this  wide  field,  but  still  the  possible  extent  of 
state  legislation  is  far  wider  than  that  granted  to  Congress. 

The  first  and  most  fundamental  limitations  upon  state  legis-  Limitations 
lation  are  those  of  the  Federal  Constitution.  These  limitations  "eg'isiatures 
are  common  to  all  states  and  are  enforced  by  federal  authority  1,°  *^^ , 

•'  _•'    Federal 

through  judicial  decision.  They  are  to  be  found  chiefly  in  constitution 
Article  I,  Sect,  x,  where  a  state  is  prohibited  from  making  a 
treaty,  granting  letters  of  marque  or  reprisal,  coining  money, 
emitTing  bills  of  credit,  making  anything  but  gold  or  silver 
legal  tender,  passing  bills  of  attainder,  ex  post  facto  laws,  or 
laws  impairing  the  obligation  of  contracts,  or  granting  titles  of 
nobility.  No  state  shall  lay  import  or  export  duties  or  tonnage 
duties,  or  keep  troops  or  ships  of  war  in  time  of  peace,  or 
engage  in  war.  The  Thirteenth,  Fifteenth,  Eighteenth,  and 
Nineteenth  Amendments  add  other  restrictions:  slavery  is 
forbidden  by  the  Thirteenth  Amendment ;  the  power  of  the 
states  to  deny  suffrage  on  account  of  race,  color,  previous  con- 
dition of  servitude,  or  sex  is  prohibited  by  the  Fifteenth  and 
Nineteenth  Amendments ;    prohibition   is  established   by   the 

1  Article  IV. 


196      STATE  AND  MUNICIPAL  GOVERNMENT 

Eighteenth  Amendment.  The  most  far-reaching  prohibition, 
however,  Hes  in  the  Fourteenth  Amendment.  By  this,  citizens 
of  the  United  States  are  declared  to  be  citizens  of  the  state  in 
which  they  reside,  and  no  state  may  abridge  the  privileges  or 
immunities  of  such  citizen,  or  deprive  any  person  of  life, 
liberty,  or  property  without  due  process  of  law,  or  deny  to 
any  person  the  equal  protection  of  the  laws.  The  application 
of  this  amendment  gives  the  Supreme  Court  of  the  United 
States  the  right  to  sit  in  judgment  upon  state  legislation  and 
makes  it  in  many  ways  the  censor  of  state  laws.  This  amend- 
ment has  profoundly  altered  the  original  Constitution.  It  was 
the  longest  step  toward  centralization  and  has  proved  to  be 
the  most  effective  check  upon  the  legislation  of  the  states.  In 
recent  years,  however,  the  court  is  showing  a  tendency  to 
accept  the  discretion  of  the  state  legislatures  and  to  uphold 
laws  passed  under  the  police  power,  rather  than  to  substitute 
its  own  point  of  view  for  that  of  the  state  legislature. 
Limitations  Each  State  scts  some  limits  upon  the  powers  of  the  state 
stitu^ions"'  legislature.  A  comprehensive  enumeration  of  these  limitations 
would  be  impossible  unless  a  digest  were  made  of  the  constitu- 
tion of  every  state.  Nevertheless  it  is  possible  to  group  the 
more  fundamental  limitations  into  certain  categories, 
(i)  The  gov-  In  no  state  is  the  legislature  the  sole  authority  participating 
ernor's  veto  ^^  ^j^^  passage  of  laws.  Everywhere  the  laws  must  be  submitted 
to  the  governor  for  his  approval.  The  governor's  veto,  how- 
ever, is  not  absolute,  but  may  be  overridden  by  the  state 
legislature.    With  the  adoption  of  the  initiative  and  referen- 

(2)  Direct     dum  the  state  legislature  shares  with  the  people  the  lawmaking 

legislation  t  ,    .  ,-,     ,■  i  •  i  -u       r      •    -i 

power.     In  every  state  constitution  there  is  a  bill  of  rights 

(3)  Guar-      guaranteeing  to  the  citizens  the  fundamental  rights  of  person 
sonai  rights  and  property.    These  are  usually  found  in  the  articles  prescrib- 
ing jury  trial,  the  writ  of  habeas  corpus,  freedom  of  religion, 
speech,  and  press,  and  the  provisions  which  declare  that  prop- 
erty shall  not  be  taken  for  public  use  without  just  compensation 

(4)  Frame-    or  by  other  means  than  due  process  of  law.    The  framework  of 
go°vernment  ^^6  government  is  prescribed  by  the  state  constitution  and  may 

not  be  altered  by  the -legislature  alone.    In  the  more  modern 
constitutions  not  only  arc  the  three  great  departments  of  the 


THE  STATE  LEGISLATURE  197 

state  government  provided  for,  but  certain  subordinate  depart- 
ments or  commissions  are  established.  Experience  has  shov.^n  (5)  The 
that  it  is  wise  to  restrict  the  financial  power  of  the  state  legisla-  p^wer'* 
ture.  In  some  states  the  kinds  of  taxes  which  may  be  levied 
are  designated ;  in  many,  debt  limits  are  prescribed  as  well  as 
mandatory  provisions  for  the  payment  of  money  borrowed  by 
the  state.     Most  state  constitutions  lay  restrictions  on   the  (e)  Local 

e    .■,■,•  1  •  r  •111  government 

power  01   the  legislature  to  interfere  with  local  government. 

In  some  states  home  rule  for  municipalities  is  guaranteed  in  one 

form  or  another.    In  practically  all  modern  constitutions  there  (7)  corpora- 

are  special  provisions   regarding  corporations,   which  provide 

that  no  special  charters  or  special  privileges  shall  be  granted, 

and  which  subject  corporations  to  supervision  and  sometimes 

deny  to  them  some  of  the  legal  procedure  which  is  guaranteed 

to  natural  citizens. 

IMany  state  constitutions  prohibit  the  legislature  from  pass-  (8)  Special 
ing  special  laws  in  any  form  whatsoever.  JNIost  state  con- 
stitutions prohibit  the  enactment  of  special  laws  on  certain 
specified  subjects.  The  distinction  between  a  general  law  and 
a  special  law  is  not  always  easy  to  perceive.  A  general  law 
applies  to  all  persons  or  things  subject  to  the  authority  of  the 
state,  but  a  general  law  may  also  apply  to  classes  of  persons, 
or  things,  defined  according  to  some  essential  characteristic, 
such  as  sex,  age,  or  profession.  For  example,  a  law  limiting 
the  hours  at  which  women  might  work  in  factories  would  be  a 
general  law.  Or  a  law  which  compels  anyone  who  practices 
law  within  the  state  to  exhibit  such  qualifications  as  required 
by  the  examinations  for  the  bar  would  also  be  a  general  law. 
A  law,  however,  which  exempted  lawyers  from  taxation  would 
be  a  special  act,  inasmuch  as  lawyers  may  be  distinguished 
from  others  on  the  ground  of  profession,  but  this  distinction 
has  no  relation  to  the  duty  of  the  payment  of  taxes.^  The 
specified  subjects  on  which  special  acts  are  generally  prohibited 
are  very  numerous  and  various,  but  among  them  may  be  in- 
cluded divorce,  court  procedure,  remission  of  fines,  corpora- 
tions, and  county,  town,  and  municipal  affairs.    The  question 

iSee  P.  S.  Reinsch,  American  Legislatures  and  Legislative  Methods, 
pp.  148-149. 


198      STATE  AND  MUNICIPAL  G0VERN:MENT 

of  special  legislation  concerning  municipalities  in  contrast  to 
"home  rule"  will  be  discussed  at  length  in  a  later  section.^ 
Composition      The  legislature  of  every  American  state  is  a  bicameral  body, 
legislatures  The  reasons  for  this  are  partly  historical,  partly  theoretical, 
The  and  largely  practical.    In  most  of  the  colonies  the  legislative 

sys^em"^^  assemblies  were  checked  by  the  action  of  the  governor's  council, 
which,  although  primarily  executive,  acted  as  an  upper  house 
in  legislation.  With  the  adoption  of  the  Federal  Constitution, 
providing  for  a  legislature  composed  of  the  House  of  Repre- 
sentatives and  Senate,  a  strong  influence  was  set  at  work.  It  is 
true  that  the  jealousies  of  the  state  made  the  establishment 
of  the  Senate  necessary,  and  no  such  reason  compelled  the 
establishment  of  a  second  chamber  in  the  state  legislature. 
Nevertheless  the  federal  analogy  has  had  a  great  influence  in 
keeping  the  bicameral  system  unchanged  in  spite  of  certain 
defects  which  have  been  made  manifest.  Although  there  are 
no  local  units  of  importance  and  influence  within  the  state 
corresponding  to  the  states  within  the  Union,  yet  there  are 
entirely  valid  theoretical  reasons  for  the  establishment  of  a 
second  chamber.  Representative  government  unchecked  rep- 
resents simply  the  majority.  Perfect  representative  govern- 
ment should  represent  all  important  classes  within  the  state. 
The  framers  of  the  original  state  constitutions  desired  that 
property  should  not  be  at  the  mercy  of  the  majority,  who 
were  largely  propertyless.  Thus  they  created  an  upper  house  or 
senate  for  membership  in  which  higher  property  qualifications 
were  required,  and  thus,  by  giving  coordinate  responsibility 
to  both  houses  of  the  legislature,  they  hoped  to  insure  for 
wealth  an  equal  influence  with  numbers  and  to  protect  the 
propertied  class  against  the  radical  legislation  which  they 
feared  from  the  majority.  With  the  abolition  of  property 
qualifications  for  the  electorate  the  original  purpose  of  a 
bicameral  legislature  has  apparently  disappeared,  but  with 
the  massing  of  the  population  of  the  states  in  large  cities  a 
new  justification  for  the  bicameral  system  is  put  forward.  In 
order  that  the  state  legislature  shall  represent  all  sections  of 
the  state,  territorially  considered,  proxisions  are  usually  found 

'See  pages  378-392- 


THE  STATE  LEGISLATURE  199 

in  state  constitutions  which  make  at  least  one  house  of  the 
legislature  represent  territorial  regions,  while  the  other  may 
represent  the  majority  party. 

The  bicameral  system  is,  moreover,  justified  on  more  theo-  Theoretical 
retical  grounds.  It  is  held  that  consideration  of  measures  by  J"ons  of  the 
two  separate  bodies  acting  independently  of  each  other  and  at  ^'camerai 
different  times  will  insure  more  careful  legislation.  If  there 
be  any  distinct  difference  in  the  character  of  the  membership, 
or  the  method  of  choice,  or  the  length  of  terms  of  those  two 
bodies,  perhaps  this  may  be  true.  At  present,  however,  the 
qualifications  for  both  houses  are  practically  the  same ;  there 
is  no  difference  in  the  method  of  election.  It  is  true  that  the 
members  of  the  senate  generally  represent  larger  constituencies 
than  do  the  members  of  the  other  house,  but  this  difference 
is  not  of  sufficient  importance  to  justify  in  itself  a  second 
chamber.  The  growth  of  political  parties  and  the  perfection 
of  the  party  organization  generally  result  in  the  control  of  both 
houses  of  the  legislature  by  the  same  party.  The  party  pro- 
gram is  more  valued  than  the  careful  theoretical  scrutiny  each 
house  is  supposed  to  give,  and  measures  under  the  pressure  of 
party  discipline  are  put  through  both  houses  with  little  regard 
to  the  double  consideration  the  system  is  supposed  to  compel. 

In  spite  of  the  theoretical  and  historical  advantages  of  the  Dangers 
bicameral  system  certain  evils  have  resulted.     The  senate,  or  bicameral 
upper  chamber,  is  the  smaller  body.     It  therefore  offers  an  system 
easier  field   for  political   or  private   manipulation.     In   some 
states,  at  certain  periods  when  corrupt  influences  are  predomi- 
nant, the  will  of  the  electorate  has  been  thwarted  by  the  ma- 
nipulation of  a  few  senators,  thereby  forcing  a  deadlock.    At 
other  times  a  deadlock  between  the  house  and  senate  has  been 
broken  only  by  means  of  a  compromise,  which  was  unsatisfac- 
tory to  the  electorate  but  less  harmful  to  the  interests  which 
were  fearful  of  legislative  action.    When  the  United  States  sen- 
ators were  elected  by  the  state  legislatures,  state  senators  were 
subject  to  tremendous  pressure  from  one  candidate  or  another. 

In  the  eyes  of  many  observers  the  bicameral  system  has  not  Proportional 
justified  itself.    The  theoretical  arguments  for  complete  rather  tion 
than  mere  majority  representation  are  freely  admitted.    But  it 


2  00      STATE  AND  MUNICIPAL  GOVERNMENT 

is  hoped  to  obtain  this  more  perfect  representation  through 
some  system  of  preferential,  cumulative,  or  proportional  voting. 
Illinois,  while  not  abolishing  the  bicameral  system,  has  adopted 
a  method  of  cumulative  voting.^  By  this  the  house  of  repre- 
sentatives consists  of  three  times  the  number  of  the  members 
of  the  senate.  Representatives  are  chosen  from  senatorial  dis- 
tricts, and  each  qualified  voter  may  cast  as  many  votes  for  one 
candidate  as  there  are  representatives  to  be  elected,  or  he  may 
distribute  his  votes  among  the  candidates.  This  has  insured 
minority  representation.  It  is  not  proportional  representation, 
which  has  been  previously  described.-  No  state,  however,  has 
yet  adopted  such  a  system.'^ 
Legislative       The  question  of  the  apportionment  of  state  representatives 

apportion-  ,  .  .  ,     ,^,  .        .  r     n     i 

ment  and  senators  is  an  important  one.*    Ihe  constitutions  of  all  the 

states  recognize  two  principles — population  and  territory.  In 
few  states  are  the  representatives  distributed  according  to  the 
unchecked  rule  of  either  population  or  territories.  Restrictions 
are  placed,  in  most  states,  upon  representation  by  population, 
and  territorial  representation  receives  special  favor.  In  all  states 
the  upper  house  is  smaller  than  the  lower,  and  in  most  states 
there  is  a  different  basis  of  representation  for  the  two  houses. 
The  county  is  the  unit  of  representation  for  the  lower  house 
outside  of  New  England.    In  some  states  each  county  constitutes 

^See  B.  F.  Moore,  "The  History  of  Cumulative  Voting  and  Minority 
Representation  in  Illinois"  (1870-1908),  Illinois  University  Studies,  1909. 

2  See  pages  102-104. 

^The  proposals  for  a  model  state  constitution  put  forward  by  the 
committee  on  state  government  of  the  National  Municipal  League  advo- 
cate a  unicameral  state  legislature  chosen  by  proportional  representation. 
National  Municipal  Review,  Vol.  IX,  p.  711. 

^See  P.  S.  Reinsch,  American  Legislatures  and  Legislative  Methods, 
chap,  vii;  A.  N.  Holcombe,  State  Government  in  the  United  States, 
pp.  242-248.  P.  S.  Reinsch,  Readings  on  American  State  Government, 
pp.  120-126,  gives  the  speech  of  Eiihu  Root  in  the  New  York  Constitu- 
tional Convention  of  1894;  PP-  127-120,  the  message  of  Governor 
McLean  of  Connecticut.  G.  H.  Haynes,  Representation  in  State  Legis- 
latures, presents  an  exhaustive  study  of  the  basis  of  representation,  the 
organization  of  the  legislatures,  the  personnel  of  the  legislators,  and  the 
party  strength  of  the  legislatures  of  1899.  These  studies  also  appear  in 
the  Annals  of  the  American  Academy  of  Political  and  Social  Science, 
Vol.  VL  p.  254;  Vol.  XV,  pp.  204,  40s;  Vol.  XVI,  pp.  93,  243. 


THE  STATE  LEGISLATURE  201 

a  separate  representative  district.    The  total  number  of  rep-  umt  of 
resentatives  to  be  chosen  is  distributed  among  the  counties,  tion  fnlhe 
theoretically   in   proportion   to   population,   with   the  proviso  J^^outslde' 
that  no  county  receive  less  than  one.    The  representatives  are  «*  New 

,  _,  .     England 

chosen  upon  a  general  ticket  from  the  county  at  large.  This 
method  is  followed  in  several  of  the  Northern  and  Middle 
Western  states ;  for  example,  in  New  Jersey,  Ohio,  and  Iowa. 
In  less  populous  states  containing  numerous  counties  this 
would  make  the  house  too  large;  hence  in  some  such  states 
sparsely  settled  counties  are  grouped  together,  while  a  more 
populous  county  is  allowed  a  representative  of  its  own.  In 
other  cases  the  entire  state  is  divided  into  electoral  districts, 
theoretically  of  contiguous  territory  and  equal  population,  and 
each  district  returns  one  member.  There  is  a  regulation  which 
provides  that  each  county  shall  contain  at  least  one  district.  In 
other  cases  counties  are  combined  or  subdivided  in  order  to 
form  electoral  districts.  The  basis  of  representation  in  New 
England  states  is  the  town,  but  their  method  of  apportionment 
varies.    In  Massachusetts  the  towns  and  cities  are  grouped  or  (2)  m  New 

,  ,  •        ^   1  1     England 

divided  as  is  necessary  in  order  to  make  approximately  equal, 
contiguous  districts;  in  Connecticut  and  Vermont  each  town 
or  city  receives  a  fixed  number  of  representatives  and  in  Ver- 
mont an  equal  number  of  representatives  irrespective  of  its 
population. 

The  basis  of  representation  for  the  senate  is  more  uniform,  unit  of 
In  most  states  single-member  districts  are  created  by  dividing  tatio^for 
or  combining  counties.    But  in  Ohio  the  larger  communities,  ^^^  ®^°^^^ 
which  would  be  entitled  to  elect  more  than  one  member,  are 
not  divided  into  single-member  districts,  but  choose  two  or 
three  according  to  population.    In  some  states  each  county  is 
entitled  to  an  equal  number  of  representatives  irrespective  of 
its  population. 

Legislative  apportionment  has  accomplished  what  it  intended.  The  results 
With  the  exception  of  Connecticut  and  Vermont  the  lower  tiveappor- 
house  represents  the  majority  of  the  population.    The  upper  tionment 
house  also  represents  the  majority.    Since  the  members  of  the 
upper  house   are  chosen   from  larger  districts,   the   effect  of 
plurality  election  is  to  increase  the  strength  of  the  majority 


202      STATE  AND  MUNICIPAL  GOVERNMENT 

and  to  diminish  the  representation  which  the  minority  might 
gain  b}^  the  use  of  smaller  districts.  The  majority  gains  at 
the  expense  of  the  minority  in  yet  another  way.  This  is  by 
means  of  gerrymandering.  The  purpose  of  a  gerrymander  is 
to  enable  the  majority  to  carry  the  greatest  number  of  districts 
with  the  fewest  number  of  votes,  or,  to  put  it  in  other  words, 
to  have  as  large  a  minority  in  each  district  as  is  compatible 
with  the  safety  of  the  majority.  Although  most  state  constitu- 
tions provide  that  the  electoral  districts  shall  be  substantially 
equal  in  population  and  composed  of  contiguous  territory,  the 
state  legislature  to  which  the  construction  of  these  districts 
is  confided  interprets  "substantially  equal  populations"  with 
the  greatest  liberality,  and  it  is  not  difficult  to  find  in  almost 
any  state  grave  inequalities  of  population.  The  phrase  "con- 
tiguous territory"  has  also  been  interpreted  most  grotesquely.^ 
Discrimina-  The  bicameral  system  makes  it  easy  to  discriminate  against 
cities^^^°^*  cities.  This  is  accomplished  in  various  ways.  According  to 
the  Connecticut  constitution  the  lower  house  represents  the 
towns  without  regard  to  numbers.  Thus  the  four  smallest 
Connecticut  towns,  with  a  total  population  of  1567,  are  rep- 
resented by  5  members;  but  the  four  most  populous  cities, 
containing  a  population  of  309,982,  have  only  8  members, 
although,  on  the  basis  of  population,  they  would  be  entitled  to 
87.-  A  similar  condition  exists  in  Vermont.  In  New  York  the 
constitution  provides  that  each  county  except  Hamilton  shall 
have  at  least  one  member  in  the  assembly  (as  the  lower  house 
is  called),  with  the  result  that  about  one  fifth  of  the  districts 
fall  below  the  ratio  established  by  dividing  the  population  by 
one  hundred  and  fifty,  the  number  of  members  allowed  for  the 
assembly.  As  a  result  the  smaller  counties  are  over-represented, 
while  almost  all  the  larger  counties  are  under-represented.  Not 
content  with  this  discrimination  against  the  cities,  the  New 
York  constitution  provides  that  no  county,  no  matter  how  large, 
shall  have  more  than  one  third  of  the  senators,  and  that  no  two 

^For  examples  with  illustrations  see  J.  R.  Commons,  Proportional 
Representation  (2d  ed.),  p.  55,  and  P.  S.  Reinsch,  American  Legislatures 
and   Legislative  Methods,  pp.  200-204. 

^C.  A.  Beard,  American  Government  and  Politics  (3d  ed.),  p.  521. 


THE  STATE  LEGISLATURE  203 

adjoining  counties  or  counties  separated  only  by  public  waters 
shall  have  more  than  one  half  of  the  senators.  This  is  a  direct 
discrimination  against  New  York  City. 

Since  the  constitution  vests  in  the  legislature  the  apportion-  Attitude  of 

,     ,  ,  ,    ,  •  ,  1  ,1  the  courts 

ment  of  the  senators  and  representatives,  the  courts  have  gen-  ^n  legisia- 
erally  held  that  this  is  a  discretionary  act  which  is  not  subject  Sj^^^t"' 
to  judicial  review.    Exceptions,  however,  are  to  be  found  in 
Michigan    (1892),   Wisconsin    (1892),   and   Indiana    (1892).^ 
But  in  general  the  legislatures  are  given  free  hand  in  appor- 
tioning the  representatives  and  senators. 

The  lower  houses  in  state  legislatures  vary  in  size  from  413  size  of  state 
(New  Hampshire)  to  35  (Delaware).    The  senates  vary  from  ^^isaures 
67  (Minnesota)  and  51  (Illinois  and  New  York)  to  18  (Utah) 
and   19    (Arizona).    In  general,  it  might  be  fair  to  say  that 
the  lower  houses  of  the  legislature  are  two  or  three  times  as 
large  as  the  upper  houses.- 

In  seven  states  there  are  annual  sessions  of  the  state  legis-  sessions  of 
lature.^^    In  Mississippi  and  Alabama  the  legislature  meets  in  legislature 
regular  session  only  once  every  four  years.    Biennial  sessions 
are  the  rule  in  all  others.    In  New  York  and  New  Jersey  the 
representatives  serve  for  a  single  year,  in  the  great  majority 
of  the  other  states  for  two  years.*    Senators  in  the  New  Eng-  Length  of 

terms 

land  states  have  the  same  length  of  term  as  the  representatives 
— -two  years.  This  is  also  true  in  a  few  other  states.^  In  some 
of  the  Southern  states  the  senators  and  representatives  serve 
for  four  years.''  Elsewhere  the  senators  are  elected  for  four  years 
and  the  representatives  for  two,  except  in  New  Jersey,  where 
the  term  of  the  senators  is  three  years  and  that  of  the  repre- 
sentatives one.  It  is  thus  seen  that  there  is  a  general  tendency 
to  give  the  senators  longer  terms  and  hence,  in  part,  to  make 

iSee  P.  S.  Reinsch,  American  Legislatures  and  Legislative  Methods, 
pp.  204-212,  with  references  to  cases. 

-See  tables  on  pages  204-205. 

3 Connecticut,  Georgia,  Massachusetts,  New  Jersey,  New  York,  Rhode 
Island,  and  South  Carolina. 

4  In   Alabama,  Louisiana,  and  Mississippi  for  four  years. 

5  Arizona,  Georgia,  Idaho,  Michigan,  Nebraska,  North  Carolina,  Ohio, 
South  Dakota,  Tennessee,  and  Utah. 

6  Alabama,  Louisiana,  and  Mississippi. 


2  04      STATE  AND  MUNICIPAL  GOVERNMENT 


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THE  STATE  LEGISLATURE 


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2o6      STATE  AND  MUNICIPAL  GOVERNMENT 


Length  of 
sessions 


Salaries 


the  upper  house  in  some  degree  different  from  the  lower  house. 
It  may  be  questioned,  however,  whether  these  longer  terms 
actually  make  the  senators  more  conservative  and  less  subject 
to  immediate  demands  of  popular  opinion,  but  it  may  be  justi- 
fied as  carrying  out  one  of  the  theories  of  the  bicameral  system.^ 

Fifteen  states  set  no  limit  to  the  length  of  the  regular  ses- 
sion of  the  legislature.  In  other  states  it  is  limited — in  the 
majority,  to  sixty  days. 

The  compensation  paid  the  legislators  varies  from  $200  a  ses- 
sion in  New  Hampshire  and  South  Carolina  to  $3500  for  two 
years  in  Illinois.  Massachusetts,  New  York,  and  Pennsylvania 
pay  Si 500  per  year.  The  majority  of  the  states,  however, 
while  limiting  the  length  of  the  session,  compensate  the  mem- 
bers on  A  per-diem  basis.  This  varies  from  $3  a  day  in  Ore- 
gon and  Kansas  to  $10  a  day  in  Delaware  and  Kentucky,  the 
average  being  between  $5  and  S6  a  day. 


^See  pages  19S-199. 


CHAPTER  XI 

THE  LEGISLATURE  AT  WORK 

The  members  of  the  state  legislature  are  fairly  representative  organiza- 
of  the  average  American.    In  most  houses  there  is  an  over-  character 
representation  of  the  legal  profession.    This,  however,  may  be  °^  ®*^f}^ 
partly  explained  by  the  fact  that  many  young  lawyers  enter 
political  life  as  a  means  of  advancement  in  their  chosen  career. 
Lawyers  of  great  eminence  or  wide  practice  are  seldom  found. 
The  laboring  class  is  hardly  represented.    On  the  other  hand, 
representatives  of  the  farming  class  are  numerous.    Many  of 
the  members  have  had  some  experience  in  politics,  although 
this   is  generally  confined   to   holding   town,   county,   or  city 
offices.     The  majority  of  the  members  are  not  graduates  of 
colleges  and  seldom  have  education  other  than  that  obtained 
in  the  lower  public  schools,  although  the  lawyers  add  to  this 
their  professional  training.^ 

In  all  states  the  house  of  representatives  chooses  its  own  officers 
officers,  and  in  some  states  a  similar  privilege  is  given  to  the 
senate.    However,  in  many  states  the  lieutenant  governor  acts 
as  the  presiding  officer  of  the  upper  house. 

The  most  important  officer  in  the  state  legislature  is  the  The  speaker 
speaker  of  the  house  of  representatives.  Nominally  he  is  chosen 
by  the  house ;  practically,  as  in  all  American  legislatures,  he 
is  elected  by  the  caucus  of  the  party  in  the  majority  and 
this  selection  is  ratified  formally  by  the  house.  Many  elements 
enter  into  the  choice  of  the  speaker.  Personal  popularity 
counts  a  great  deal ;  political  influence  counts  even  more.  Most 
essential  of  all,  however,  is  the  ability  to  work  with  the  ap- 
proval  of  a  group  of  inlluential   members.     These   unofficial 

iSee  Samuel  P.  Orth,  "Our  State  Legislatures,"  in  Atlantic  Monthly, 
Vol.  XCIV,  pp.  728  ff.  This  is  also  reprinted  in  P.  S.  Reinsch,  Readings 
on  American  State  Government,  p.  41;  see  also  G.  H.  Haynes,  Repre- 
sentation in  State  Legislatures. 

207 


208      STATE  AND  MUNICIPAL  GOVERNMENT 


The  powers 
of  the 
speaker : 
(i)  Recog- 
nition 


leaders  are  found  in  the  legislature  of  every  state  and  attain 
their  positions  partly  through  native  ability,  partly  through  the 
backing  of  political  organizations,  and  in  some  cases  through 
length  of  service.  They  have  influence  over  the  other  mem- 
bers of  the  legislature  and,  together  with  the  speaker,  practi- 
cally determine  the  course  of  legislation.  Not  infrequently  it 
happens  that  the  candidate  for  speaker  agrees  to  appoint  these 
leaders  to  the  chairmanships  of  important  and  influential  com- 
mittees, thus  satisfying  their  ambitions  and  obtaining  their  sup- 
port for  his  own  election.  The  speaker  and  this  little  group  are 
generally  known  as  the  ^'organization." 

Aside  from  personal  influence  the  speaker  derives  his  power 
from  five  different  sources.  First,  it  comes  from  the  preroga- 
tive of  recognition.  According  to  the  rules  of  all  state  legisla- 
tures no  member  may  take  part  in  debate  or  introduce  any 
measure  unless  recognized  by  the  speaker.  Thus,  unless  the 
speaker  wills,  a  member  may  be  condemned  to  absolute  and 
ineffectual  silence.  Recognition  is  one  of  the  most  powerful 
weapons  in  the  speaker's  armory.  As  a  by-product  of  recog- 
nition comes  the  control  over  what  the  member  shall  say  or  do. 
In  utilizing  this  the  speaker  may  ask,  "For  what  purpose  does 
the  gentleman  rise  ?  "  thus  compelling  the  member  to  disclose  his 
plan,  and  the  speaker  may  deny  recognition  unless  he  approves. 
(a)  RuUngs  The  speaker  decides  all  points  of  order.  It  is  obvious  that 
no  legislative  assembly  can  proceed  without  rules.  It  is  the 
speaker's  function  to  see  that  the  business  of  the  house  pro- 
ceeds according  to  these  rules.  A  variation  from  the  rules  is 
a  cause  for  objection  or  for  points  of  order  made  by  members 
of  the  house.  It  is  the  speaker's  function  to  determine  whether 
or  not  the  procedure  is  actually  in  accordance  with  the  rules. 
The  speaker  is  not  simply  an  impartial  presiding  officer — he  is 
the  product  of  the  party  system  and  is  the  chief  party  leader 
in  the  house.  Thus,  not  infrequently  it  happens  that  he  decides 
points  of  order  in  the  interest  of  his  party.  Of  course  it  is 
perfectly  allowable  for  any  member  to  appeal  to  the  house 
from  the  ruling  of  the  speaker,  but  since  the  speaker  represents 
the  majority  party  in  the  house  his  ruling  is  generally  sustained. 
The  speaker  may  very  effectually  control  the  organization  of 


THE  LEGISLATURE  AT  WORK  209 

the  house  by  determining  the  presence  of  a  quorum  or  by 
refusing  to  put  dilatory  motions  or  to  allow  obstructive  tactics. 
In  some  cases  he  has  arbitrarily  exercised  these  powers  and 
still  more  arbitrarily  refused  to  allow  appeal  from  his  decisions. 

All  committees  of  the  house  are  appointed  by  the  speaker.  (3)  Appoint- 
This,  next  to  recognition,  is  his  most  powerful  method  of  re- 
warding his  supporters  and  punishing  his  opponents.  As  is 
expected,  the  committees  of  the  legislature  are  partisan  com- 
mittees, controlled  by  the  party  in  majority.  The  speaker  goes 
even  further  and  selects  as  chairman  of  the  committee  not 
simply  a  member  of  his  party  but  one  of  his  supporters,  who, 
if  not  a  member  of  the  organization,  holds  ideas  pleasing  to 
the  speaker  and  agrees  with  him  in  the  legislation  which  is 
deemed  wise  for  the  house  to  undertake.  IMembers  who  are 
independent  or  who  defy  the  speaker  find  themselves  upon 
unimportant  committees,  and  their  measures,  when  referred  to 
committees  controlled  by  the  speaker  and  his  friends,  have 
little  chance  of  passage. 

Another  prerogative  of  the  speaker  is  that  of  referring  to  the  (4)  Refer- 

6Z1CC 

appropriate  committees  the  multitude  of  measures  which  are 
introduced.  The  speaker  is  thus  in  a  position  to  refer  an  objec- 
tionable measure  to  a  "safe"  committee;  that  is,  a  committee 
composed  of  his  friends  and  supporters.  It  happens  not  infre- 
quently that  committees  composed  of  able  and  independent 
members  find  little  to  occupy  their  attention  except  routine 
business  of  a  nonpartisan  character,  while  seemingly  insig- 
nificant committees  are  intrusted  with  the  determination  of 
measures  of  great  importance  in  which  the  organization  is 
vitally  interested. 

In  some  but  by  no  means  all  state  legislatures  there  is  a  (5)com- 
committee  on  rules.  This  committee  is  nominally  charged  with  rules 
proposing  amendments  to  the  standing  rules  of  the  house ; 
practically  it  determines  the  order  of  business.  This  is  done 
through  the  means  of  introducing  special  rules  which  facilitate 
the  consideration  of  business  favored  by  the  organization  and 
thus  prevent  the  consideration  of  business  not  so  acceptable. 

Both  houses  of  the  state  legislature  have  sergeants  at  arms,  other 
who  are  charged  with  keeping  order  and,  in  some  cases,  with 


210      STATE  AND  MUNICIPAL  GOVERNMENT 


The 

committee 

system 


The  Massa- 
chusetts 
committee 
system 


the  payment  of  the  members ;  secretaries  or  clerks,  who  keep 
the  journal  and  records  of  the  body ;  and  other  subordinate 
officials.  All  these  officers,  although  nominally  chosen  by  the 
senate  or  house,  are  actually  picked  by  the  caucus  of  the  party 
in  the  majority. 

The  mass  of  legislation  which  is  introduced  into  state  legisla- 
tures necessitates  some  preliminary  consideration  by  commit- 
tees. The  power  and  influence  of  these  committees  vary  greatly 
in  different  states,  but  in  general,  according  to  Professor  Hol- 
combe,^  they  may  be  brought  under  the  following  classification, 
based  on  the  powers  which  the  committees  actually  exercise. 

In  ]\Iassachusetts  and  a  few  other  states  the  committees  have 
little  independent  power.  Their  only  important  privilege  is 
that  of  examining  the  measures  which  are  referred  to  them 
for  consideration.  By  the  rules  of  the  house  they  are  obliged 
to  report  to  the  house  every  measure  which  has  been  referred 
to  them  with  the  recommendation  that  it  pass  or  do  not  pass, 
or  with  amendments.  It  is  the  custom  for  the  committees  to 
hold  public  hearings  upon  the  measures  which  are  referred  to 
them  and  thus  to  give  the  proponents  and  opponents  of  the 
measure  an  opportunity  to  state  their  views.  Moreover,  since 
any  person  may  present  a  measure  to  the  Massachusetts  legis- 
lature by  obtaining  the  indorsement  of  a  single  member,  the 
legislature  is  most  open  to  popular  opinion.  No  committee  has 
any  special  privilege,  and  the  reports  of  all  committees  are  acted 
upon  in  the  order  in  which  they  are  received  unless  changed 
by  a  four-fifths  vote  of  the  house.  Thus,  in  Massachusetts 
the  power  of  the  organization  is  reduced  to  its  lowest  terms, 
and  every  measure  which  has  been  introduced  is  given  an 
opportunity  to  be  heard.  In  addition,  there  is  established  a 
system  of  joint  committees  of  house  and  senate  which  is  a 
great  saving  of  time  for  both  the  legislators  and  the  proponents 
of  a  measure.  The  Massachusetts  system,  however,  is  extrava- 
gant of  time.  The  sessions  of  the  legislature  generally  occupy 
from  five  to  six  months,  and  the  fact  that  the  committees  must 
report  every  measure  referred  to  them  prevents  the  smothering 

^Statc  Government  in  the  United  States,  pp.  253-261;  P.  S.  Reinsch, 
American  Legislatures  and  Legislative  Methods,  chap.  v. 


THE  LEGISLATURE  AT  WORK  211 

of  foolish  bills  and  compels  the  legislature  to  take  time  to 
kill  measures  which  ordinarily  would  receive  but  short  shrift 
at  the  hands  of  a  committee.^ 

In  most  states  the  committees  have  more  power  than  is  The  normal 
allowed  them  in  Massachusetts.  The  committees  in  these  states  system 
are  privileged  to  report  or  not  to  report  a  measure,  to  hold 
public  hearings,  or  to  consider  the  measure  in  private.  Thus 
it  happens,  perhaps  fortunately,  that  a  great  majority  of  the 
measures  which  are  introduced  never  reach  consideration  by 
the  legislature,  but  are  buried  in  committees.  This  is  advan- 
tageous for  most  measures,  while  it  gives  the  opportunity  for 
the  organization  to  smother  a  measure  which  is  unacceptable 
to  it.  It  is  true  that  in  many  states  where  this  system  prevails 
the  house,  by  an  extraordinary  vote,  may  discharge  the  com- 
mittee from  consideration  of  any  measure  and  thereby  bring 
it  directly  before  the  house,  but  there  are  great  obstacles  in  the 
actual  working  of  this  device. 

The  chairman  of  a  committee  of  this  type  occupies  a  privi-  chairman 
leged  position  and  exercises  extraordinary  prerogatives.  The  committee 
committee  meets  at  the  call  of  the  chairman,  and  thus  com- 
mittee action  may  be  prevented  by  the  very  simple  device  of 
not  calling  a  meeting.-  The  chairman,  moreover,  usually  has 
it  in  his  power  to  determine  whether  public  hearings  shall  be 
held  or  not.  When  it  is  remembered  that  the  chairmen  of 
committees  are  the  supporters  of  the  speaker  and  members  of 
the  organization,  it  can  be  clearly  seen  to  what  an  extent  the 
organization  actually  controls  the  legislative  product. 

Furthermore,  in  committees  of  this  type  certain  committees  Privileged 
are  specially  privileged  in  making  reports  and  thus  can  bring 
their  business  directly  before  the  house  at  any  time.  In  states 
where  this  procedure  is  in  vogue  the  duration  of  the  session  is 
usually  limited.  Hence  there  is  a  great  pressure  in  the  last 
days-  of  the  session,  and  committees  favored  by  the  rules,  or 

1  For  a  full  description  of  the  legislative  procedure  in  Massachusetts  see 
L.  A.  Frothingham,  A  Brief  History  of  the  Constitution  and  Government 
of  Massachusetts. 

2  In  some  states — Illinois,  for  example — 50  per  cent  of  the  committee 
may  call  a  meeting. 


212      STATE  AND  MUNICIPAL  GOVERNMENT 


Conference 
committees 


The 

New  York 
system 


committee  chairmen  favored  by  the  speaker,  can  force  through 
their  business,  while  others  are  unable  to  gain  consideration. 
The  system  of  joint  committees  is  seldom  used  in  the  normal 
system,  and  as  a  result  different  measures  or  the  same  measure 
varying  in  detail  may  be  passed  by  the  two  houses. 

To  compromise  these  differences  a  joint  committee  of  con- 
ference is  appointed.  This  joint  committee  of  conference, 
under  the  pretense  of  arriving  at  a  compromise,  may  practically 
rewrite  a  measure  which  has  been  passed  by  both  houses.  It  is 
true  that  the  work  of  the  committee  of  conference  must  be 
ratified  by  both  houses,  but  because  of  pressure  of  business  and 
political  influence  this  is  generally  done  with  little  question. 
Illinois  may  be  taken  as  a  state  where  this  type  of  committee 
organization  is  seen  at  its  highest  development,  although  the 
abuses  which  have  been  mentioned  may  be  found  in  other 
states  as  well.^ 

What  Professor  Holcombe  characterizes  as  the  New  York 
system  is  the  application  to  state  legislatures  of  the  method 
which  existed  in  Congress  a  decade  ago — the  system  where 
the  speaker  is  the  keystone  and  exercises  to  a  high  degree 
all  the  powers  which  have  been  enumerated.  In  cooperation 
with  the  committee  on  rules  and  the  chairmen  of  the  other 
important  committees,  he  absolutely  controls  the  procedure  of 
the  legislature  and  the  legislative  product.  It  is  the  organiza- 
tion carried  to  its  highest  power.  It  has  all  the  defects  which 
organization  rule  must  have,  but  it  has  the  advantage  of  fixing 
the  responsibility  very  definitely.  In  the  IVIassachusetts  system 
there  is  little  or  no  responsibility.  This  is  especially  true  when 
it  is  remembered  that  party  voting  in  state  legislatures  is  less 
frequent  than  in  other  legislative  assemblies.  In  New  York 
the  speaker  and  the  chairmen  of  the  committees  chosen  by  the 
party  caucus  are  actually  responsible  for  the  action  of  the 
legislature.  This  responsibility  is  both  positive  and  negative. 
They  can  control  the  time  and  procedure  of  the  legislature  and 
thus  can  be  held  responsible  for  the  failure  to  pass  any  measure. 

iSee  C.  L.  Jones,  Statute  Law-makinp:  in  the  United  States,  pp.  i8-iq; 
also  Nebraska  Legislative  Reference  Bureau,  Bulletin  No.  j,  "Legislative 
Procedure  in  the  Forty-eight  States,"  p.  217. 


THE  LEGISLATURE  AT  WORK  213 

Negatively,  through  the  same  means,  they  can  prevent  the 
passage  of  any  measure.  The  great  defect  of  the  New  York 
system  is  that  the  legislature  may  be  responsive,  not  to  popular 
opinion,  but  to  the  dictation  of  party  leaders.  When  the  power 
of  the  party  organization  in  the  nomination  and  election  of 
candidates  is  remembered,  it  will  be  seen  how  far  the  New  York 
system  may  depart  from  popular  democratic  government. 

The  problems  and  functions  of  a  state  legislature  may  be  The 

l6£rislcitiv6 

considered  under  four  heads:  what  the  law  shall  be,  on  what  problem: 
basis  the  law  shall  be  made,  what  form  the  law  shall  take,  by 
what  process  the  law  shall  be  enacted.^ 

The  determination  of  the  legislative  program,  or  what  laws  (i)What 
shall  be  passed,  is  set  forth  in  the  platform  of  the  party,  theuw? 
Theoretically  a  party  platform  promises  legislation  upon  cer- 
tain subjects,  and  the  voters  by  the  election  of  the  party  mem- 
bers indorse  and  adopt  this  program.  Actually,  however,  as 
has  been  pointed  out,  party  platforms  are  very  general  and 
are  designed  to  attract  voters  rather  than  to  set  forth  matured 
programs.  It  is  true  that  in  some  instances  a  party  will 
promise  legislation  of  a  particular  sort.  In  such  instances  the 
party  platform  fulfills  its  theoretical  function.  But,  as  Presi- 
dent Lowell  has  pointed  out,-  party  votes  are  not  so  frequent 
in  state  legislatures  as  is  ordinarily  expected.  Machine  or  boss 
control  there  may  be,  but,  as  has  been  shown  again  and  again, 
this  control  is  sometimes  bipartisan.  If  the  party  seldom 
determines  what  the  law  shall  be,  leadership  must  be  looked 
for  elsewhere.  This  is  found  more  and  more  frequently  in  the 
governor.  The  governor  is  in  many  ways  the  third  house  of 
the  legislature,  and  by  means  of  his  messages  and  his  vetoes 
is  frequently  able  to  control  the  procedure  of  the  legislature  and 
to  determine  its  product.-'    For  perfect  harmony  the  governor 

1  Professor  Holcombe  has  well  classified  these  functions  as  selection, 
collection  of  information,  drafting,  and  consideration,  in  "State  Govern- 
ment in  the  United  States,"  pp.  268-272. 

2 See  Report  of  the  American  Historical  Association,  Vol.  I,  pp.  319- 
544,  and  "The  Government  of  England,"  Vol.  II,  p.  91,  which  gives  a 
table  of  the  party  votes  in  Illinois,  Massachusetts,  New  York,  Ohio, 
and  Pennsylvania. 

^See  pages  135-139- 


214      STATE  AND  MUNICIPAL  GOVERNMENT 

and  the  organization — that  is,  the  speaker  and  his  supporters 
in  the  legislature — must  be  of  the  same  party  or  of  the  same 
branch  of  the  party. 
(2)  On  what       Having  determined  what  shall  be  the  subject  of  legislation, 
the'iaw  be    the  next  problem  is  to  obtain  information  concerning  these 
made?         subjects.    This  is  done  in  various  ways.    The  most  formal  and 
[investi-       effective   method   is   by   an   investigation   of   a   committee   or 
mittees]       commission  either  appointed  by  the  governor  or  chosen  by  the 
legislature.     This    commission    often   exercises    quasi-judicial 
power  and  may  summon  witnesses  and  take  testimony  under 
oath.    An  example  of  a  proceeding  of  this  sort  is  the  insurance 
investigations  held  in  New  York  in  1905.    As  a  result  of  these 
investigations  the  laws  governing  insurance  companies  were 
revised  and  a  new  statute  enacted.    Less  formal  methods  are 
[Public         the  public  hearings  of  an  ordinary  legislative  committee.  Some- 
times the  information  upon  which  the  law  is  framed  is  obtained 
[Report  of     from  the  report  of  some  administrative  officer  who  is  an  expert 
tive  officer]'  in  his  particular  field.    For  the  great  mass  of  legislation,  how- 
ever,   little    investigation   is    attempted   and   less    information 
sought.    A  law  is  introduced  and,  if  accepted  by  the  commit- 
tee and  reported  to  the  house,  is  generally  passed.    In  only  a 
few  states  are  the  committees  compelled  to  obtain  enlighten- 
ment by  public  hearings. 
[The  lobby]       The  most  sinister  method  of  obtaining   information  is  by 
means  of  the  lobby.    The  lobby  may  be  defined  as  a  group  of 
persons  employed  to  give  information  to  the  legislators.    This 
definition,  hpwever,  need  not  connote  anything  improper, — 
any  citizen  or  group  of  citizens  may,  with  all  legitimacy,  give 
information   and   urge   the  legislators  to  adopt  or  to  oppose 
certain  measures, — but  in  its  usual  sense  the  lobby  means  a 
group  of  agents  who  are  paid  by  persons  interested  to  gain  the 
support  of  the  legislators  for  certain  acts  or  to  prevent  the 
passage  of  measures  deemed  harmful  to  them.    Even  in  this 
sense  the  lobby  is  not  necessarily  an  evil.    A  college,  a  bank, 
or  a  labor  union  may  with  perfect  propriety  employ  counsel 
to  state  the  reasons  for  or  against  the  passage  of  certain  legis- 
lation.    Should  the  activities  of  lobbyists  of  this  last   type 


THE  LEGISLATURE  AT  WORK  215 

be  confined  entirely  to  the  public  hearings  of  committees,  to 
the  preparation  of  briefs  and  printed  documents,  little  excep- 
tion could  be  taken  to  them,  save  that  the  longest  purse  would 
be  able  to  obtain  the  most  assistance  from  such  outside 
agencies.  When,  however,  the  lobby  attempts  to  influence  the 
legislator  in  secret  ways  by  means  of  promises  of  reward, 
financial  or  otherwise,  it  becomes  a  sinister  and  corrupt 
institution.  Twenty  years  ago  the  influence  of  lobbies  was 
extremely  powerful  in  many  states  and  corruption  was  wide- 
spread. When  it  was  realized  that  many  of  the  legislators 
owed  their  allegiance  not  to  the  electorate  or  to  their  party, 
but  to  a  legislative  agent  who  practically  controlled  their  vote, 
measures  were  taken  to  check  this  parasite.  Moreover,  the 
interests  employing  lobbyists  not  infrequently  found  that  the 
methods  used  only  whetted  the  appetites  of  the  legislators  and 
the  lobbyists  themselves.  Instances  are  not  wanting  of  lobby- 
ists who  had  hostile  legislation  introduced  in  order  that  they 
might  show  their  employers  how  it  might  be  defeated.^ 

Suppression  of  a  corrupt  lobby  is  extremely  difficult.  In  [Regulation 
1890-  Massachusetts  attempted  to  deal  with  this  problem,  but  lobby] 
not  very  successfully.  Lobbyists  were  classified  as  legislative 
counsel  who  were  employed  to  make  oral  arguments  before 
committees  and  as  legislative  agents  who  were  used  to  interview 
individual  legislators.  Both  classes  were  required  to  register 
with  a  sergeant  at  arms,  stating  their  names  and  employers 
and  the  bills  in  connection  with  which  they  were  employed. 
After  the  close  of  each  session  they  were  required  to  state  the 
compensation  they  had  received  for  their  services.  Their  em- 
ployers also  were  obliged  to  file  the  amount  of  money  paid  for 
the  purpose  of  influencing  legislation.  About  all  this  plan 
accomplished  was  to  make  public  the  names  of  lobbyists  and  to 
inform  the  public  thirty  days  after  the  session  how  much  money 
had  been  spent.  Similar  plans  were  adopted  in  Maryland  and 
in  Wisconsin.  Governor  La  Follette,  of  the  latter  state,  in 
1905  recommended  that  hired  lobbyists  be  forbidden  to  attempt 

^See  page  222. 

2  Massachusetts  Acts  and  Resolves,  1890,  chap.  456. 


2i6      STATE  AND  MUNICIPAL  GOVERNMENT 

personally  and  directly  to  influence  any  member  of  the  legisla- 
ture.^ This  drastic  measure,  however,  was  not  adopted.  Lob- 
bies are  still  maintained  in  the  legislatures  of  most  of  the  states, 
but  of  recent  years  public  opinion  has  prevented  some  of  their 
most  shameless  actions. 
[Legislative  In  1901  the  legislative  reference  department  of  the  Wisconsin 
Bureau]  Library  Commission  was  established.-  One  of  the  purposes  of 
this  department  was  to  give  the  legislator  the  information  which 
the  lobbyist  had  frequently  furnished  him.  When  it  is  remem- 
bered that  most  members  of  the  state  legislature  are  politicians 
but  not  experts  in  lawmaking,  it  can  be  seen  that  dependence 
on  some  outside  source  is  necessary.  This  outside  aid  was  fre- 
quently given  by  the  lobbyist,  who  not  only  prepared  measures 
in  which  his  employers  were  interested  but  sometimes,  as  a 
means  of  winning  the  favor  of  a  legislator,  drafted  a  bill  in 
which  the  latter  was  interested.  The  lobbyist  at  his  best  was  a 
trained  expert,  the  legislator  an  honest  but  uninformed  person 
attempting  the  complicated  process  of  legislation.  The  legis- 
lative reference  bureau,  particularly  in  Wisconsin,  gathers  in- 
formation on  any  subject  which  the  individual  legislator 
desires.  This  is  done  by  clerks  and  experts  who  keep  files  of 
the  statutes  of  other  states  and  the  laws  of  other  countries. 
The  bureau  goes  so  far  as  to  prepare  arguments  in  favor  of  the 
proposed  legislation.  In  other  words,  it  places  at  the  disposal 
of  the  legislator  the  information  on  which  to  base  not  simply 
the  introduction  of  his  bill  but  the  arguments  necessary  for 
its  passage.  In  addition  to  this  service  the  bureau  keeps  an 
elaborate  file  of  statutes  and  information,  carefully  indexed 
and  digested.  INIany  states  have  established  legislative  refer- 
ence bureaus,  but  in  few  has  their  work  been  expanded  as 
in  Wisconsin.  Generally  their  activity  involves  little  more 
than  bill-drafting  (which  will  be  discussed  later),  or  at  most 

^His  messaKc  to  the  legislature  is  to  be  found  in  P.  S.  Reinsch, 
Readings  on  American  State  Government,  pp.  81-84. 

■^For  a  description  of  the  work  of  this  department  see  an  article  by 
Charles  McCarthy  in  the  Bulletins  of  the  Wisconsin  Legislative  Reference 
Department,  iqo8.  This  is  reprinted  in  P.  S.  Reinsch,  Readings  on 
American  State  Government,  pp.  63-74. 


THE  LEGISLATURE  AT  WORK  217 

the  examination  of  bills  and  amendments  in  order  to  avoid 
repetitions  and  unconstitutionalities  and  to  insure  consistency 
with  existing  legislation/ 

Drafting  bills  is  a  difficult  and  technical  task.    The  average  (3)  in  what 
legislator  is  generally  unable  to  draft  a  bill  which  will  success-  uwshaiibe 
fully  express  his  ideas,  and  as  a  result  the  statute  books  are  [Biu- 
full  of  hastily  and  ill-drawn  measures  which  do  not  express  the  Bureau] 
intention  of  the  author.    In  addition  to  the  difficulty  of  making 
the  bill  express  the  author's  desire,  care  must  be  taken  that  it 
is  in  harmony  with  previous  legislation.    In  some  states  there  is 
a  special  drafting  bureau  w'hose  function  it  is  to  put  the  ideas 
of  the  legislator  in  correct  form  and  in  harmony  with  previous 
legislation.    In  some  states  this  is  almost  the  sole  function  of 
the  legislative  reference  bureau.    Even  in  the  states  where  such 
aid  is  given,  the  legislators  are  slow  to  take  advantage  of  it. 

The  amount  of  business  considered  by  the  state  legislatures  (4)  By  what 

,  ,   process  the 

is  enormous.    In  the  five  years  from  1899  to  1904  the  total  lawshaiibe 
number  of  acts  passed  by  American   state  legislatures   was  ^e^*jgj^^i^g 
4i;,i;i;2.-    In  the  single  year  191 5  fortv-seven  states  adopted  procedure: 
16,222  acts  and  resolves.^    In  the  twelve  largest  states  more  business 
than  22,000  measures  were  introduced.^    Professor  Orth^  re- 
ports that  one  legislature  which  sat  for  one  hundred  and  thirty- 
two  days  passed  448  general  laws,  328  local  laws,  and   62 
joint  resolutions.    One  half  of  these,  however,  were  passed  dur- 
ing the  last  fifteen  days.    On  the  last  day  70  general  laws,  17 
local  laws,  and  6  joint  resolutions  were  passed ;  on  next  to  the 
last  day,  59  general  laws,  20  local  laws,  and  i  joint  resolution, 
or  a  total  of  173  enactments  in  two  days.    Since  the  legis- 
lature sat  only  twelve  hours  each  day,  each  of  these  meas- 
ures was  passed  at  the  rate  of  one  every  eight  minutes.    During 

iSee  American  Political  Science  Review,  Vol.  X,  p.  no,  for  a  descrip- 
tion of  the  bureaus  then  existing. 

2  P.  S.  Reinsch,  American  Legislatures  and  Legislative  Methods,  p.  300. 

3 A.  N.  Holcombe,  State  Government  in  the  United  States,  p.  24Q, 
quoting  the  Report  of  the  Committee  on  Noteworthy  Changes  in  Statute 
Law  to  the  American  Bar  Association  (1915),  p.  57. 

4 A.  N.  Holcombe,  State  Government  in  the  United  States,  p.  249, 
quoting  the  official  Index  to  State  Legislation,  Vol.  I,  1915. 

5"0ur  State  Legislature,"  in  Atlantic  Monthly,  Vol.  XCIV,  pp.  728ff. 


2i8      STATE  AND  MUNICIPAL  GOVERNMENT 


(2)  Classi- 
fication of 
business 


(3)  Order  of 
business 


(4 1  Limita- 
tions on 
debate 


Steps  in 
legislation : 


(1)  Intro- 
duction 


the  last  night  of  the  session  of  the  New  York  Assembly  in  192 1, 
laws  were  passed  at  the  rate  of  two  a  minute.  Similar  statis- 
tics might  be  made  for  the  last  days  of  the  legislatures  whose 
sessions  are  limited  by  the  state  constitutions,  and  even  in  those 
states  with  unlimited  sessions  the  last  days  are  hurried.  This 
volume  of  legislation  requires  special  rules  and  procedure  to 
regulate  and  facilitate  consideration  and  passage. 

All  measures  are  classified  and  referred  to  the  appropriate 
committees  for  consideration.  This  classification,  as  well  as 
the  number  of  committees,  varies  in  different  states,  but  the 
general  rule  prevails  in  all  states  that  no  measure  will  be  con- 
sidered by  the  house  until  examined  by  a  special  or  standing 
committee. 

In  all  legislatures  the  order  of  business  is  prescribed  by  the 
rules.  In  some  states  the  rules  are  extremely  simple,  and  the 
procedure  is  determined  by  the  order  in  which  the  committees 
reports.  In  other  states  special  committees  receive  special 
privileges  and  are  given  priority  in  making  their  reports.  This 
is  true  of  the  committees  recommending  appropriations  and  of 
conference  committees.  In  some  states  the  committee  on  rules 
may  alter  the  standing  orders  and  determine  the  succession  in 
which  the  committees  may  report. 

All  state  legislatures  limit  the  freedom  of  debate.  These 
limitations  may  be  concerned  with  the  number  of  times  or  the 
length  of  time  a  member  may  speak,  and  debate  may  be  cut  off 
entirely  in  the  case  of  certain  motions  like  the  motion  to  ad- 
journ. In  some  legislatures,  as  in  Congress,  a  motion  may  be 
passed  cutting  off  the  debate  on  any  question.  This  is  known 
as  the  "previous  question"  and  forces  the  legislature  to  vote 
at  once  upon  the  main  question  before  it  without  further  debate 
or  consideration. 

The  actual  procedure  of  state  legislation  varies  greatly  in 
the  individual  states,  but  it  generally  has  certain  common 
characteristics.^  The  first  step  is  the  introduction.  In  theory 
the  member  introducing  a  measure  must  gain  the  recognition 
of  the  speaker  and  the  bill  must  be  read  by  title.    Practically, 

iSec  P.  S.  Reinsch,  American  Legislatures  and  Legislative  Methods, 
chap.  vi. 


THE  LEGISLATURE  AT  WORK  219 

however,  in  many  legislatures,  a  bill  is  introduced  by  the  simple 
process  of  dropping  it  into  a  box,  indorsed  with  the  name  of 
the  member  introducing  it.  The  introduction  of  the  measure 
and  the  reading  by  title  is  known  as  the  first  reading.  In  some 
states  the  second  reading  follows  immediately  after  the  first  (2)  First 
reading.  In  others,  by  the  state  constitution,  this  must  take  ^^^  '°^ 
place  upon  a  later  day.    Upon  the  second  reading  the  bill  is  (3)  second 

.  .  r  •  1  •  rr-u-     reading 

referred  to  the  appropriate  committee  for  consideration.    Inis 

is  done  by  the  speaker  on  the  basis  of  the  title  of  the  bill.  (4)  Refer- 

.  f       ence  to  a 

As  has  been  pointed  out,  however,  the  speakers  sometimes  reier  committee 
bills  which  they  wish  to  suppress  to  committees  they  can  easily 
control.    Bills  involving  the  program  of  the  organization  are 
always  taken  care  of  by  organization  committees. 

In  the  majority  of  the  states  the  committees  may  do  what  (5)  consid- 
they  wish  to  the  bills  referred  to  them  for  consideration.    They  by  the 
may  kill  them,  amend  them,  hold  public  hearings  upon  them,  committee 
or  discuss  them  in  private.    In  Massachusetts,  however,  they 
must  report  a  decision  recommending  some  action,  even  that 
the  bill  should  not  pass.^ 

The  next  stage  is  the  report  of  the  committee.  Not  all  states  (6)  Report 
compel  such  a  report,  but  where  it  is  made,  it  is  usually  with  committee 
the  recommendation  that  the  bill  be  passed  or  that  the  bill  be 
not  passed,  with  or  without  amendments.  In  the  report  stage 
a  motion  may  be  made  to  recommit  the  bill  to  the  committee. 
This  may  be  with  instructions  to  alter  it,  or  it  may  mean  a 
simple  and  painless  death  for  the  measure. 

The  bill  is  then  ordered  to  be  engrossed.    This  means  that  a  (7)  Third 

,     .  ,  ...     reading 

fair  copy  of  the  bill  is  made,  great  care  being  taken  that  it  is 
in  the  exact  form  in  which  it  was  accepted  by  the  house  and 
that  it  incorporates  the  various  amendments.  The  process  of 
engrossing  is  usually  carried  on  by  clerks,  supervised,  however, 
by  the  committee  on  engrossing  bills.  When  that  is  done  the 
bill  is  reported  to  the  house  and  read  the  third  time  and,  if 
accepted,  is  declared  passed. 

After  being  passed  by  one  house  it  is  sent  to  the  other,  where  (8)  consid- 

_.,,.,,.  11   eration  by 

substantially  the  same  steps  are  taken.    If  the  bill  is  amended  the  other 
or   in   any   way    altered    in    the   second   house   a   conference  ^°^^^ 

iSee  page  210. 


2  20      STATE  AND  MUNICIPAL  GOVERNMENT 


(9)  Enroll- 
ing 


(10)  Approv- 
al of  the 
executive 


Financial 
legislation 


Influence  of 
the  organi- 
zation in 
legislative 
procedure : 


committee  is  usually  appointed  to  bring  about  a  compromise 
between  the  two  legislative  branches,  and  its  work  is  submitted 
to  each  house  for  acceptance. 

When  the  bill  is  finally  passed  by  both  houses  it  is  sent  to 
the  committee  on  enrolled  bills,  which  supervises  the  making 
of  the  final  copy.  This  is  signed  by  the  presiding  officers  of 
each  house.  The  enrolled  bill,  so  signed,  is  then  sent  to  the 
governor  for  his  approval.  If  he  approves  the  bill  he  signs  it, 
and  it  is  deposited  with  the  secretary  of  state,  while  the  house 
in  which  it  originated  is  informed  of  the  governor's  act  by  a 
message.  If  the  governor  disapproves  of  the  bill,  he  returns  it 
to  the  house  of  its  origin  with  a  message  stating  the  reason 
for  his  disapproval.^ 

The  foregoing  process  is  a  composite  description  of  the  pro- 
cedure for  ordinary  laws  generally  followed  in  state  legislatures. 
It  does  not  apply,  however,  to  financial  legislation.  In  most 
states  there  are  special  provisions  and  special  forms  of  proce- 
dure devised  to  insure  adequate  publicity  and  sufficient  care  in 
the  matter  of  appropriations.  For  the  most  part  a  single  com- 
mittee may  be  given  charge  of  the  general  appropriation  bills, 
although  other  committees  may  report  laws  requiring  appro- 
priations, and  private  members  may  by  amendments  increase 
the  amounts  appropriated.  The  whole  subject  of  state  finance 
will  be  treated  at  length  in  a  separate  chapter. 

It  must  not  be  supposed  that  the  process  of  legislation  is 
carried  on  without  direction.  Leadership  and  direction  there 
must  be;  and  in  some  states,  where  the  rules  do  not  pro- 
vide for  setting  up  an  all-powerful  speaker  and  committee  on 
rules,  leadership  depends  more  upon  personal  merit  and  in- 
fluence of  certain  members.  In  all  states,  however,  no  matter 
how  loose  the  organization  of  the  legislature,  there  is  a  group 
of  leaders  who  exercise  real  authority.  Practically,  this  group 
always  includes  the  speaker,  who,  if  not  the  real  leader  of  the 
house,  is  the  agent  of  the  organization.  In  some  states  the 
organization  has  degenerated  at  times  into  an  instrument  for 
corruption    and    may    be   controlled  by    one   or   both   of   the 


^See  governor's  veto,  pp.  136-139. 


THE  LEGISLATURE  AT  WORK  221 

machines  of  the  political  parties.^  But  it  is  not  necessary  to 
assume  that  all  organizations  are  corrupt.  Indeed,  the  reverse 
is  true.  However,  a  study  of  the  corrupt  conditions  existing 
at  various  times  in  some  state  legislatures  will  perhaps  clearly 
show  the  extent  of  the  power  of  the  organization  and  the  danger 
of  the  misuse  of  this  power. 

As  has  been  pointed  out,  the  committees  in  all  state  legisla-  d)  control 
.  tures  are  appointed  by  the  speaker,  who,  himself,  is  a  product  mittees™ 
of  the  organization  and  who  constitutes  the  committees  so  that 
they  may  do  his  bidding.  It  is  not  necessary  that  the  entire 
committee  should  be  composed  of  organization  members.  In 
many  states  it  is  enough  that  the  chairman  should  be  suscep- 
tible to  such  influence,  inasmuch  as  he  may  prevent  action  by 
failing  to  summon  a  committee  meeting.- 

In  general,  this  control  is  exercised  by  the  speaker  through  (2)  control 
his  prerogatives  of  recognition  and  decision  of  points  of  order,  procedure 
In  some  legislatures,  however,  the  committee  on  rules  or  an  legislature 
informal  steering  committee  determines  in  advance  what  meas- 
ures shall  be  taken  up  and  at  what  time  votes  shall  be  taken. 
In  very   rare  cases  speakers   have   been  known   to   "gavel" 
through  a  measure;  that  is,  to  declare  a  measure  passed  on 
which  the  vote  was  dubious. 

The  individual  members  of  the  legislature  are  quite  at  the  (3)  influence 
mercy  of  the  organization.    Their  careers  may  be  made  or  individual 
marred.    Since  the  speaker  has  the  power  of  appointment  and  "^^g^"^® 
recognition  he  can  pretty  successfully  prevent  his  opponents  legislature 
from  obtaining  consideration  for  the  measures  in  which  they 
are  interested,  and  thus  destroy  their  legislative  usefulness. 
By  the  same  means  he  may  reward  his  supporters  and  enable 
them  to  satisfy  the  desires  of  their  constituents. 

^See  P.  S.  Reinsch,  American  Legislatures  and  Legislative  Methods, 
chap,  viii,  "The  Perversion  of  Legislative  Action."  This  is  an  impartial 
and  judicial  account  of  what  has  been  and  may  be  accomplished  through 
the  prostitution  of  the  organization  of  the  legislature.  Between  1Q03  and 
1910  there  were  numerous  articles  written  describing  the  perverted  action 
of  the  legislatures,  which  are  commonly  grouped  under  the  name  of 
"muckraking"  literature. 

-In  order  to  limit  this  power  of  the  chairman  some  states  allow  50  per 
cent  of  the  members  of  a  committee  to  call  a  meeting. 


222      STATE  AND  MUNICIPAL  GOVERNMENT 


Perversion 
of  legisla- 
tive action 


Effect  of 

legislative 

perversion 


As  Professor  Reinsch  has  clearly  pointed  out/  economic 
interests,  beginning  with  the  railroads,  desired  special  legisla- 
tive favors.  To  obtain  these  they  made  special  appeals  to  the 
individual  legislators.  Some  of  these  appeals  were  entirely 
proper,  but  in  other  cases  bribery  and  corruption  were  resorted 
to.  It  was  found  necessary  to  maintain  legislative  agents  (or 
the  lobby)  at  the  legislature  to  obtain  what  they  considered 
was  proper  legislation  and  to  prevent  what  might  be  harmful. 
At  a  later  stage  interested  parties  utilized  the  powers  of  the 
organization  just  described.  Still  later,  the  leader  or  boss  of 
the  party  machine  was  appealed  to  by  the  interested  groups, 
and  through  party  control  obtained  satisfaction  for  these 
groups  or  prevented  injury  to  them.-  When  this  stage  was 
reached  the  organization  of  the  legislature  might  more  properly 
be  denominated  the  machine. 

The  effect  of  this  perversion  of  legislative  action  was  two- 
fold :  it  removed  the  government  from  popular  control  and 
vested  it  in  "the  invisible  government"  (that  is,  the  boss  and 
the  machine).  Doubtless  many  interests  obtained  the  desired 
legislation,  but  the  methods  by  which  their  desires  were  accom- 
plished taught  the  legislators  the  possibility  of  using  these 
methods  against  the  interests  themselves.  As  a  result  (as  in- 
vestigations in  some  states  have  disclosed)  individual  legislators 
introduced  ''strike"  bills — that  is,  bills  dangerous  to  certain 
corporations — in  expectation  that  the  corporations  would  buy 
them  off.  Proper  legislation  was  opposed  until  the  individual 
legislator  was  satisfied  by  some  favor  or  bribe.  Blackmail  of 
this  sort  not  only  debauched  the  legislature  but  compelled  the 
corporations  to  keep  constantly  on  hand  legislative  agents 
well  supplied  with  means  for  the  purpose  of  preventing  such 
procedure.    This  was  the  lobby  at  its  worst. 

The  legislature  performs  another  function  besides  the  mak- 

amendments  ^^K  of  laws ;  namely,  the  framing  of  proposed  amendments  to 

the  state  constitution.    Most  state  constitutions  are  subject  to 

amendment  by  the  joint  action  of  one  or  more  state  legislatures 

ratified  by  the  people.''    The  process  of  framing  and  passing 

'  American  LcKisIaturcs  and  Legislative  Methods,  chap.  viii. 

2  See  Autobiography  of  Thomas  C.  Piatt.  ^Sec  page  31. 


Constitu- 
tional 


THE  LEGISLATURE  AT  WORK  223 

these  proposed  amendments  through  the  legislature  is  much 
the  same  as  the  passage  of  ordinary  legislation.  A  committee 
considers  the  proposition  and  frames  the  amendment.  It  is 
reported  to  the  legislature  and  enacted  like  an  ordinary  bill. 
Most  states,  however,  require  for  passage  an  extraordinary 
majority  in  both  houses. 

Although  the  product  of  the  state  legislature  is  prodigious  in  The 
volume  its  quality  does  not  satisfy  the  electorate.    Proof  of  this  p^roduct'^^ 
statement  may  be  seen  in  the  increasing  minuteness  with  which  '*™'*^^^ 
state  constitutions  limit  the  functions  of  the  legislature.    Not 
only  have  legislatures  been  excluded  from  whole  fields  of  legis- 
lation, but  state  constitutions  prescribe  with  growing  exactness 
the  method  and  procedure  by  which  laws  shall  be  adopted.^ 
This  is  particularly  true  in  finance.    In  addition,  some  state 
constitutions  attempt  through  mandatory  provisions  to  compel 
the  legislature  to  pass  certain  laws.    This  has  proved  futile. 
In  despair  the  electorate  has  sought  relief  in  two  ways :  first,  d)  By  con- 
by  legislating  in  the  state  constitutions.    A  glance  at  some  of 
the  more  recent  state  constitutions  will  at  once  reveal  the  extent 
to  which  what  is  nominally  a  framework  has  become  a  code  of 
laws.    In  particular  this  is  true  with  regard  to  the  laws  relating 
to  corporations.    Second,  the  electorate  is  using  with  increasing  (2)  By 
frequency  direct  legislation,  or  the  initiative  and  referendum,  legislation 

The  process  of  direct  legislation  has  already  been  described,  Effect  of 
but  its  effect  upon  the  legislature  should  be  considered.   Through-  tive'and^* 
out  the  discussion  a  distinction  must  be  made  between   the  referendum 

on  the 

optional  and  the  compulsory  referendum.  The  compulsory  legislature 
referendum  is  where  the  legislature  submits  a  bill  for  approval 
without  waiting  for  action  by  the  electorate.  This  unques- 
tionably has  the  effect  of  lowering  the  sense  of  the  responsi- 
bility which  the  legislature  should  maintain.  It  enables  the 
legislators  to  dodge  the  issue  and  to  curry  favor  on  all  sides. 
This  type  of  referendum,  however,  should  be  sharply  distin- 
guished from  that  which  submits  the  application  of  a  law  to 
the  electorate  of  a  locality.  The  latter  is  a  form  of  local 
government.  The  optional  referendum,  however,  is  invoked 
only  upon  questions  on  which  a  substantial   number  of  the 

^See  page  27. 


2  24      STATE  AND  MUNICIPAL  GOVERNMENT 

electorate  differ  from  the  decision  of  the  legislature.  It  is  in 
the  nature  of  a  corrective ;  but  since  the  legislature  has  already 
passed  the  law,  and  the  individual  legislators  have  gone  on  the 
record  as  opposing  or  favoring  it,  one  cannot  see  how  this  type 
of  referendum  can  diminish  the  legislator's  responsibility.  On 
the  contrary,  it  would  seem  to  bring  home  in  a  concrete 
case  his  success  or  failure  to  satisfy  his  constituents.  It  may 
be  that  where  either  type  of  the  referendum  is  in  use  the  legis- 
lature will  become  still  more  careless  in  the  passage  of  meas- 
ures, but  evidence  is  wanting  upon  this  point.  The  use  of  the 
initiative  can  have  little  bad  effect  upon  the  legislature,  since 
it  is  an  attempt  of  the  electorate  to  obtain  a  law  which  the 
legislature  has  refused.  It  may  be,  however,  that  the  suc- 
cessful use  of  the  initiative  will  weaken  the  sense  of  party 
responsibility,  but  it  has  been  shown  that  party  voting  in  the 
legislature  is  not  as  great  as  is  commonly  supposed.^  Direct 
legislation  has  not  lowered  the  character  of  the  legislative 
product  nor,  on  the  other  hand,  has  it  greatly  improved  it. 
It  can  be  demonstrated  that  hardly  any  law  has  been  adopted 
by  direct  legislation  for  which  there  was  not  a  precedent  in  the 
law  of  some  other  state  acting  through  the  legislature.  At  its 
best  direct  legislation  has  been  the  means  of  bringing  satis- 
faction to  the  electorate  in  cases  where  the  legislature  was 
unresponsive  to  popular  desire.^ 

iSee  page  213. 

-See  National  Municipal  Review,  Vol.  X,  pp.  232-23Q,  for  an  addi- 
tional summary  of  the  use  of  the  initiative  and  referendum  in  1920. 


CHAPTER  XII 

STATE  FINANCE 

State  finance  is  one  of  the  most  important  and  controversial  importance 
subjects  in  state  government.  There  is  hardly  an  activity  in  gnance^ 
which  the  state  is  engaged  which  does  not  in  some  way  relate 
to  finance.  State  finance  in  general  includes  the  revenue,  the 
expenditure,  and  the  debt  of  the  state.  A  discussion  of  the 
revenue  involves  the  system  of  taxation,  with  the  complex 
problems  of  the  kinds  of  taxes  to  be  levied,  their  assessment, 
and  their  collection.  State  expenditure  involves  not  simply  the 
appropriation  of  sums  of  money  but  the  legislative  procedure, 
which  in  most  states  is  somewhat  different  from  the  passage 
of  ordinary  laws.  The  state  debt  involves  not  merely  the 
payment  of  the  interest  but  the  provisions  for  the  extinction 
of  the  debt  and  the  limitations  which  most  constitutions  set 
to  the  amount  of  debt  that  a  state  may  incur. 

Summary  of  Revenue  Receipts  of  the  Forty-eight  States,  iqiq^ 


Revenues  obtained 


All  revenues  .     . 

Taxes :  Property 

Special  .    .    . 


Poll 

Business  and  nonbusiness  licenses     .    .    . 

Special  assessments  and  charges 

Fines,  forfeits,  and  escheats 

Subventions,  grants,  donations,  and  pension 

assessments 

Earnings  of  general  departments 

Highway  privileges,  rents,  and  interest     .     . 
Earnings  of  public-service  enterprises  .     .     . 


Percentage 


50.6 
2.0 

0-3 

25-3 
0.7 

0.4 

2-5 

12.3 

54 
0-5 


1  Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statistics 
of  States  (1919),  pp.  62,  63. 


225 


22  6      STATE  AND  IMUNICIPAL  GOVERNMENT 


Sources 
of  state 
revenue 


Kinds  of 
taxation : 
(i)  General- 
property  tax 


[The 
general- 
property 
tax  unsat- 
isfactory] 


The  State  derives  its  revenue  usually  from  the  following 
sources :  ( i )  the  sale  or  utilization  of  public  property,  such  as 
lands  and  canals ;  (2)  fees;  (3)  fines  and  penalties ;  (4)  taxa- 
tion— by  far  the  largest  amount.  The  table  on  page  225  gives 
the  statistics  for  19 19  according  to  the  United  States  Census. 

The  general-property  tax  has  always  been  the  chief  source 
of  state  revenue.  This  tax  is  imposed  on  all  property,  real 
and  personal,  according  to  the  valuation  set  by  local  assessors. 
The  state  tax  itself  is  usually  expressed  as  a  certain  number  of 
cents  on  each  dollar  of  the  valuation  of  the  entire  property  of 
the  state,  and  is  added  to  the  tax  collected  by  the  town,  county, 
or  city  authorities  and  forwarded  to  the  state  treasurer.  The 
determination  of  what  property  should  be  taxed  is  made  by 
the  legislature,  and  the  assessors  are  furnished  with  descrip- 
tive lists  covering  every  conceivable  kind  of  property.  Since 
the  amount  of  the  state  tax  used  to  be  determined  by  the  value 
of  the  property  in  the  community,  it  was  to  the  interest  of  the 
local  assessors  to  undervalue  the  property  and  thus  escape  as 
much  of  the  burden  as  possible.  To  prevent  this  many  states 
appoint  boards  of  equalization,  which  review  the  work  of  the 
local  assessors  and  raise  or  lower  the  valuation  of  different 
classes  of  property  in  order  to  make  them  uniform  throughout 
the  state.  About  50  per  cent  of  state  and  local  taxes  is  drawn 
from  the  general-property  tax. 

As  long  as  the  wealth  of  the  community  was  chiefly  agricul- 
tural or  tangible — that  is,  composed  of  land,  buildings,  live 
stock,  and  tangible  possessions — the  general-property  tax 
proved  fairly  satisfactory,  although  from  the  very  first  there 
was  a  tendency  on  the  part  of  both  the  property  owners  and 
the  assessors  to  undervalue  property.  This  was  recognized  in 
some  states,  and  instead  of  attempting  to  tax  the  property 
at  its  actual  valuation  the  assessors  were  directed  to  tax  it 
at  a  fraction  of  its  actual  value.  When  the  communities 
began  to  develop  an  industrial  life  large  amounts  of  wealth 
ceased  to  be  in  tangible  form  and  were  held  in  the  form  of 
securities,  mortgages,  stocks,  bonds,  and  notes.  Since  these 
could  be  concealed  from  the  eyes  of  the  assessor,  a  great  deal 
escaped   taxation.    Property  holders  were   expected  to   make 


STATE  FINANCE  227 

declaration  under  oath  of  all  their  property,  both  tangible  and 
intangible;  but  the  penalties  for  failure  to  do  this  were  not 
sufficient  to  compel  such  a  declaration,  and  much  of  the  in- 
tangible property  actually  escaped  taxation,  so  that  a  lax  spirit 
developed  which  condoned  the  making  of  false  returns.  The 
result  of  this  was  twofold.  Tangible  property  bore  more  than 
its  just  share  of  taxation,  while  intangible  property  in  the  hands 
of  dishonest  holders  escaped  taxation  and  that  which  was 
honestly  declared  was  so  heavily  taxed  that  its  income  was 
seriously  impaired.  In  the  attempt  to  remedy  this  many  states, 
sometimes  by  constitutional  amendment,  resorted  to  classifica- 
tions of  one  sort  or  another.  Real  estate  and  tangible  property 
were  taxed  at  one  rate,  intangible  property  at  another  and  far 
lower  rate.  It  was  by  offering  a  lower  rate  of  taxation  that 
many  holders  of  intangible  property,  which  had  escaped  the 
higher  rates  applied  to  tangible  property,  were  willing  to  bear 
the  tax. 

Another  method  of  taxing  intangible  property  was  to  tax  (2)  income 
not  the  property  itself  but  the  income  from  the  property.  The 
taxation  of  incomes  has  been  common  in  England  for  a  long 
time.  In  Massachusetts  professional  incomes  derived  from 
salaries  and  wages  have  been  taxed  since  colonial  days.  Since 
the  adoption  of  the  federal  income  tax  in  19 13,  however,  more 
and  more  states  have  adopted  this  method  of  supplementing 
the  general-property  tax.  The  modern  income  tax,  in  contra- 
distinction to  the  old  Massachusetts  income  tax,  is  applied  to 
incomes  derived  from  all  sources,  whether  salaries,  wages,  or 
incomes  from  business  or  from  securities.  In  making  this  appli- 
cation, however,  some  states  classify  the  incomes  derived  from 
the  different  sources  and  tax  them  at  different  rates.  Thus,  in 
Massachusetts  the  income  derived  from  salaries,  wages,  and  an- 
nuities is  taxed  at  li  per  cent ;  from  gains,  at  3  per  cent ;  from 
interest  and  dividends,  at  6  per  cent.^  In  all  these  systems  there 
is  some  exemption  allowed  to  everyone,  and  generally  additional 
exemptions  to  married  people,  with  still  further  allowances  on 

iFor  a  description  of  the  Wisconsin  income  tax  of  1911  see  American 
Political  Science  Quarterly,  Vol.  XXVIII,  p.  569;  for  the  New  York 
income  tax  of  1919  see  ibid.  Vol.  XXXIV,  p.  521. 


ance  taxes 


228      STATE  AND  MUNICIPAL  GOVERNMENT 

account  of  children  or  dependents.  Each  taxpayer  receives  a 
blank  on  which  he  is  obliged  to  state  under  oath  the  income 
which  he  has  received  from  the  different  sources.  The  op- 
portunity for  evasion  and  for  making  false  returns  is  still 
present,  but  the  revenue  officials  in  most  states  examine  very 
carefully  such  returns  and  in  some  instances  check  them  up 
by  the  information  given  by  employers  regarding  salaries  and 
wages  paid  and  by  the  lists  of  stockholders  from  corporations. 

(31  Inherit-  The  irJieritance  tax  has  been  used  as  a  source  of  state 
revenue  since  about  1890  and  is  now  found  in  almost  all  the 
states.  Originally  the  rates  were  not  particularly  high,  but  the 
tendency  has  been  to  increase  them.^  Moreover,  the  progres- 
sive principle  of  increasing  the  rates  as  the  amount  of  inherit- 
ance increases  is  more  generally  employed.  Rates  also  are 
made  to  depend  upon  the  nearness  of  the  relationship  of  the 
legatee  or  devisee  to  the  testator.  One  of  the  chief  arguments 
in  favor  of  the  inheritance  tax  is  the  ease  with  which  it  is  col- 
lected. Property  acquired  by  inheritance  goes  through  the 
probate  courts  and  thus  its  possession  cannot  be  concealed. 
The  estate  tax  levied  by  the  federal  government  interferes 
with  this  source  of  revenue,  which  was  formerly  the  peculiar 
field  of  state  taxation. 

(4)  Corpora-  One  of  the  most  popular  methods  of  raising  money  is  the 
tax  upon  corporations.  This  is  levied  in  various  forms — as 
a  tax  upon  the  property  of  the  corporation,  or  as  a  license  for 
doing  business  based  upon  the  amount  of  business,  or  upon 
the  income  of  the  corporation.  Although  very  popular  with 
the  legislators,  the  equitable  administration  of  this  tax  is 
difficult.  It  is  comparatively  simple  to  tax  a  manufacturing 
corporation  on  almost  any  basis,  but  it  is  extremely  difficult 
to  devise  a  proper  tax  for  public-service  corporations.  Only 
a  part  of  the  property  of  a  corporation  is  tangible.  This 
would  include  the  stations  and  equipment  of  a  railroad,  or 
the  motors  of  an  express  company,  or  the  wire  and  poles 
and  stations  of  an  electric-light  company.  But  these  tangible 
pieces  of  property  constitute  the  smallest  part  of  the  assets 

iln  iQiQ  Massachusetts  increased  by  25  per  cent  the  taxes  on  succes- 
sions and  legacies. 


tion  taxes 


STATE  FINANCE  229 

of  the  corporation.  What  is  most  valuable  is  the  right  or  the 
franchise  to  do  business.  How  should  this  be  taxed  ?  In  some 
states  it  is  taxed  on  the  basis  of  the  gross  returns  of  the  entire 
business,  in  some  on  the  basis  of  the  net  returns;  in  others 
the  company  is  taxed  upon  its  capital  as  representing  the  value 
placed  by  the  incorporators  upon  their  entire  property,  in- 
cluding the  franchise.  Closely  connected  with  the  taxation  of 
public-service  corporations  is  the  economic  effect  such  taxation 
has  upon  the  rates  which  these  corporations  are  allowed  to 
charge  and  upon  the  services  which  they  render.  Legislators 
frequently  look  only  to  the  income  from  the  taxes  and  forget 
that  the  companies  must  be  allowed  either  to  increase  their 
rates  or  to  diminish  the  quality  of  their  service.  In  some  states 
special  commissions  are  intrusted  with  the  adjustment  of  these 
very  complex  problems. 

In  Pennsylvania,  Delaware,  and  many  of  the  Southern  states  (5)  Business 
there  are  special  taxes  levied  upon  many  sorts  of  business.   Thus, 
in  Georgia,  the  city  of  Atlanta  is  allowed  to  levy  four  hundred 
and  sixty-six  such  special  taxes.    Business  taxes  in  most  of  the 
states,  however,  are  confined  to  a  comparatively  few  occupations. 

The  states  may  tax  all  tangible  property  within  their  juris-  constitu- 
diction.    Intangible  property  may  be  taxed  by  the  state  which  limitations 
has  jurisdiction  over  either  the  property  or  the  owner.    Thus,  "p°°  ^"^^ 

■'  f     f       J  )  power  of 

intangible  property  may  be  subject  to  taxation  by  two  juris-  the  state 

to  tJiX 

dictions,  but  this  has  not  been  held  to  be  contrary  to  the  prin- 
ciples of  the  national  Constitution.  There  is  one  exception  to 
the  principles  just  stated:  states  may  not  tax  the  property  of 
the  national  government,  whether  this  be  tangible  land  or 
buildings  or  intangible  securities  owned  by  individuals.  An 
early  decision,  moreover,  exempted  all  the  instrumentalities  of 
the  national  government  from  taxation.  This  has  been  inter- 
preted so  that  a  state  may  tax  an  instrumentality  of  the  national 
government  provided  it  does  not  interfere  with  the  purpose  for 
which  that  instrumentality  was  created.^  Thus,  federal  corpora- 
tions are  subject  to  state  taxation.  By  another  decision,  how- 
ever, the  incomes  which  citizens  of  a  state  derive  from  the 
national  government  are  exempt  from  state  taxation. 
^National  Bank  v.  Commonwealth,  9  Wall.  353. 


230      STATE  AND  MUNICIPAL  GOVERNMENT 


Restrictions 
in  state  con- 
stitutions 
on  the 
power 
to  tax 


State  ex- 
penditures 


The  constitutions  of  most  of  the  states  originally  required 
that  all  taxation  should  be  uniform.  This  prevented  any  classi- 
fication of  property  for  the  purpose  of  taxation,  and  rested 
upon  a  political  theory  which  emphasized  the  equality  not  only 
of  the  citizens  but  of  their  property.  In  recent  years,  however, 
the  tendency  has  been  not  to  regard  all  property  as  equal,  but 
to  distinguish  it  on  the  basis  of  its  ability  to  bear  the  burden 
of  taxation.  Thus,  some  states,  by  constitutional  amendment, 
have  removed  the  early  restrictions  and  are  allowed  to  classify 
property  for  purposes  of  taxation  and  to  prescribe  different 
and  progressive  rates  for  different  kinds  of  property. 

The  most  striking  and  alarming  feature  of  state  finance  is 
the  rapid  increase  of  state  expenditures.  Not  only  are  the 
expenditures  for  the  various  states  rapidly  increasing,  but  they 
are  increasing  more  rapidly  than  either  their  revenues  or  the 
assessed  valuation  of  the  property.  Thus,  between  1903  and 
1913  the  total  governmental  cost  payments  of  the  states  in- 
creased from  $186,000,000  to  $383,000,000,  or  106  per  cent. 
In  the  next  two  years  the  expenses  increased  28  per  cent,  and 
in  the  next  year  (191 6)  3  per  cent.  The  expenses  of  191 7 
increased  1.4  per  cent  over  those  of  191 6;  those  of  19 18  in- 
creased 8.5  per  cent  over  1917;  those  of  1919  increased  11.6 
per  cent  over  1918.  The  entrance  of  the  United  States  into  the 
World  War  was  in  part  responsible  for  this  increase. 

Detail  of  An  idea  of  state  expenditures  may  be  derived  from  a  sum- 

state  ex-  <•     1  • 

penditures     mary  of  the  prmcipal  items  of  governmental-cost  payments 

made  by  the  states  in  1918. 


SUMMARY  OF  GOVERNMENTAL-COST  PAYMENTS,  1918 


All  governmental  costs 

All  expenses  and  interest 

Expenses  of  general  departments     .     . 
Expenses  of  public-service  enterprises 

Interest 

Outlays 


Per  Capita 

Percbntage 

$6.09 

5.42 

5.16 

S4.7 

0.02 

00.4 

0.2-5 

:vS 

o.ri.s 

I  I.I 

Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statistics  of 
States  (iqiq),  pp.  62,  63. 


STATE  FINANCE  231 

Some  of  the  causes  for  this  growing  expenditure  are  to  be  causes  and 
found  in  the  higher  cost  of  service  and  material.  But  these  increased 
increases  would  amount  to  only  a  fraction  of  the  total  increase.  ^^^^^^^^^'^^ 
The  enormous  growth  of  state  expenditure  is  indicative  of  the 
additional  service  which  the  state  is  attempting  to  perform  and 
the  extension  of  the  sphere  of  its  activities.  Not  a  session  goes 
by  in  any  state  legislature  when  proposals  are  not  made  for  the 
extension  or  improvement  of  some  state  service.  Every  one  of 
these  extensions  adds  to  the  state  expenditure  and  increases  the 
burden  of  taxation.  The  results  were  alarming  and  were  be- 
ginning to  be  appreciated  about  a  decade  ago.  State  executives 
and  legislatures  despaired  of  limiting  or  decreasing  the  activi- 
ties of  the  state — the  whole  tendency  of  the  times  was  toward 
still  further  expansion.  The  problem  was  thus  a  twofold  one: 
to  increase  the  sources  of  revenue,  and  for  this  end  the  taxes 
just  described  were  introduced ;  secondly,  to  discover  some 
more  efficient  and  economical  method  of  administrating  the 
state  finances.  With  this  in  view  many  states  appointed  com- 
missions of  efficiency  and  economy  and  reorganized  their 
administrative  departments.  In  addition  the  majority  of  the 
states  have  revised  their  method  of  financial  legislation  and 
have  introduced  the  so-called  budget  system. 

Until  very  recently  the  chief  characteristics  of  financial  legis-  Financial 
lation  in  the  states  were  confusion  and  absence  of  responsibility.  ^^'^ 
Some  improvement  has  been  made,  but  with  the  exception  of 
a  very  few  states  financial  legislation  is  still  in  an  unfortunate 
condition.  The  traditional  method  by  which  finance  was 
handled  was  to  raise  the  revenues  by  means  of  general  laws 
which  remained  in  force  from  year  to  year.  The  appropriations 
of  each  session  were  added  together  and  a  rate  fixed  upon  the 
taxable  property  which  would  produce  sufficient  revenue  to 
cover  the  appropriations.  In  many  states  the  general  appro- 
priations were  made  by  a  committee  known  as  the  ways  and 
means  or  finance  committee,  but  these  appropriations  rarely 
included  all  the  expenditures  of  the  state,  for  other  committees 
were  allowed  to  initiate  projects  requiring  financial  support, 
and  there  was  no  restriction  upon  the  individual  legislator 
which  prevented  him  from  proposing  an  increase  to  the  amount 


232      STATE  AND  MUNICIPAL  GOVERNMENT 

recommended  by  the  appropriating  committee.  Moreover,  in 
those  states  where  the  governor  could  utilize  his  veto  power 
after  the  session  of  the  legislature  had  terminated,  there  was 
no  means  of  knowing  how  much  money  had  actually  been  ap- 
propriated. State  finance  was  hit  or  miss.  There  was  no 
scientific  budget,  and  no  one  was  held  responsible  for  the 
preparation  of  one. 
state  bud-  About  forty  states  have  adopted  some  form  of  budget  sys- 
get  systems  ^^^i  ^  budget  has  been  defined  as  a  plan  for  financing  the 
government  during  a  definite  period,  prepared  by  a  responsi- 
ble executive  and  submitted  by  him  to  a  representative  body 
whose  approval  and  authorization  are  necessary  before  the 
plan  may  be  executed.  A  proper  budget  should  therefore 
present  an  estimate  of  the  revenue  and  the  proposals  for  the 
expenditures  of  this  revenue.  It  should  also  furnish  some 
method  of  comparison  with  the  revenues  and  expenditures  of 
previous  years.  A  budget  is  thus  essential  if  there  is  to  be  a 
favorable  balance  in  the  financial  operations  of  the  state.  But 
a  budget  may  be  even  more  than  this :  it  may  propose  a  definite 
scheme  or  plan  of  governmental  activities  and  thus  become  a 
program  as  well  as  a  financial  statement. 
Types  of  In  general,  the  different  systems  of  state  budgets  may  be 

budgets        classified   into   four   types  with  reference  to  the  location  of 
the  responsibility    for   their   initiation:-    (i)    The   executive 

iThe  material  on  the  budget  system  is  voluminous.  A  good  idea  of 
the  principles  of  the  system  and  its  present  working  may  be  obtained 
from  the  following  sources:  Frederick  A.  Cleveland,  "Evolution  of  the 
Budget  Idea  in  the  United  States,"  in  the  Annals  of  the  American  Acad- 
emy of  Political  and  Social  Science,  Vol.  LXII,  pp.  15-35.  Also,  by  the 
same  author,  "  Constitutional  Provision  for  a  Budget,"  in  Proceedings  of 
the  Academy  of  Political  Science,  Vol.  V,  No.  1,  pp.  141-189;  Bulletin 
No.  2,  of  the  Bulletins  for  the  Massachusetts  Constitutional  Convention, 
Vol.  I,  presents  a  very  clear  statement  of  the  principles,  the  discussions 
of  the  chief  types,  with  the  texts  of  typical  laws  and  amendments. 
A.  E.  Buck,  in  the  National  Municipal  Revie'd',  Vol.  VIII,  pp.  422-435, 
discusses  the  present  status  of  the  executive  budgets  in  the  state  govern- 
ments. The  annual  volumes  of  the  American  Year  Book  chronicle  the 
adoption  and  uive  a  brief  description  of  the  various  systems.  See  also 
VV.  F.  Wiiloughby,  The  Movement  for  Budgetary  Reform  in  the  States. 

'•'See  A.  E.  Buck,  in  the  National  Municipal  Review,  Vol.  VIII, 
pp.  422-435- 


STATE  FINANCE  233 

budget.  In  this  type  the  governor  is  made  responsible  for  the 
formulation  of  the  budget.  More  than  twenty  states  have 
adopted  this  system.  (2)  The  administrative-board  budget. 
In  this  a  group  of  administrative  officers,  which  usually  includes 
the  governor,  prepares  the  budget.  In  19 19  about  nine  states 
followed  this  plan.  In  the  majority  the  governor  was  given 
the  power  to  appoint  the  members  of  the  board.  (3)  The 
administrative-legislative  board  budget.  Here  the  preparation 
of  the  budget  is  intrusted  to  a  committee  composed  of  both 
administrative  officers  and  members  of  the  legislature.  Six 
states  followed  this  method  in  19 19,  and  in  every  case  the 
governor  was  a  member  of  the  board.  (4)  The  legislative- 
type  budget.  In  this  the  budget  is  prepared  by  a  legislative 
committee.  In  19 19  this  was  followed  by  two  states  only — 
Arkansas  and  New  York. 

As  may  be  seen  from  the  foregoing,  the  executive  budget  The  execu- 
is  the  more  popular  among  the  states,  and  the  tendency  is  '^  ^ 
toward  this  type.  In  addition  there  is  a  distinct  movement  to 
increase  the  power  of  the  executive  in  the  preparation  of  the 
budget  and  to  diminish  the  power  of  the  legislature  in  its 
alterations.  This  is  carried  to  its  logical  conclusion  in  INIary- 
land  and  Utah,  where  the  action  of  the  legislature  is  limited. 
In  Maryland  the  legislature  may  increase  or  decrease  the  items 
relating  to  the  general  assembly  and  judiciary,  but  it  is  pro- 
hibited from  amending  the  budget  in  those  items  relating  to 
public-school  funds  or  constitutional  obligations  and  is  allowed 
to  decrease  but  not  to  increase  other  items.  In  Utah  the 
legislature  may  strike  out  or  reduce  items,  provided  public-debt 
obligations  and  the  salaries  of  the  public  officers  during  their 
term  of  office  are  not  reduced. 

More  state  laws  prescribe  a  certain  form  in  which  the  budget  Preparation 
should  be  prepared,  although  sometimes  this  is  left  to  the  budget 
governor.  The  common  procedure  is  for  the  different  depart- 
ments desiring  appropriations  to  fill  out  blanks  provided  either 
by  law  or  under  the  direction  of  the  governor  stating  the 
amounts  and  the  purposes  for  which  they  are  asked  and  show- 
ing a  comparison  with  one  or  more  previous  years.  This 
involves  considerable  classification. 


234      STATE  AND  MUNICIPAL  GOVERNMENT 


Review  and 
revision  of 
estimates 


Form  and 
contents  of 
the  budget 


Date  of 
submitting 
the  budget 
to  the 
legislature 


Other 

provisions 
concerning 
the  budget 


Effect 
of  state 
executive 
budgets 


All  but  one^  of  the  executive  budget  laws  provide  for  a 
review  of  the  estimates  by  the  governor.  In  the  majority  of 
the  states  the  governor  may  revise  these  estimates,  and  in  many 
states  he  may  hold  investigations  in  order  to  determine  the 
need  for  the  requests. 

The  form  and  contents  of  the  budget  are  provided  for  either 
by  constitutional  amendment  or  by  statute.  The  Maryland 
budget  amendment  of  191 6  was  the  first  to  make  detailed 
provision  along  this  line.  It  provides  not  only  for  a  ''govern- 
mental appropriations"  budget,  which  shall  include  all  appro- 
priations necessary  for  the  operation  of  the  government,  and 
a  ''general  appropriations"  budget,  which  shall  include  all  other 
estimates,  but  each  of  these  budgets  must  contain  a  complete 
plan  of  the  proposed  expenditures  and  estimated  revenues, 
with  the  estimated  surplus  or  deficit.  In  addition  the  budget 
must  be  accompanied  by  a  statement  showing  the  revenues  and 
expenditures  for  each  of  the  two  preceding  years,  a  balance 
sheet,  a  statement  of  debts  and  funds,  an  estimate  of  the  state's 
financial  condition,  and  explanations  by  the  governor. 

There  are  many  variations  in  the  different  states  concerning 
the  date  at  which  the  budget  should  be  submitted.  The  general 
purpose  is  to  have  it  in  the  hands  of  the  legislature  in  the  early 
days  of  the  session. 

The  general  tendency  of  budget  legislation  and  amendment 
is  to  require  that  all  appropriations  should  be  in  the  form  of 
one  consolidated  appropriation  bill.  In  Maryland,  Utah,  and 
Nevada  the  power  of  the  legislature  to  increase  the  estimates 
in  the  budget  is  strictly  limited.  In  a  number  of  other  states 
the  legislature  may  increase  or  decrease  the  items  but  may 
not  make  any  further  appropriations  until  the  general  bill  has 
been  passed. 

It  is  still  too  early  to  generalize  concerning  the  effect  of  the 
system  just  described,  since,  in  the  majority  of  states,  it  has 
not  been  in  operation  long  enough  to  give  sufficiently  accurate 
data  on  which  to  base  conditions.  If,  however,  the  opinions 
of  the  governors  of  the  states  adopting  this  method  may  be 
taken  as  conclusive,  the  budget  system  has  been  a  great  success. 

1  Iowa. 


STATE  FINANCE  235 

It  has  tended  to  simplify  financial  legislation,  has  made  for 
economy,  and  has  fixed  very  definitely  the  responsibility  upon 
the  governor. 

Since  the  state  expenditures  are  increasing  more  rapidly  than  state  debt 
the  revenue,  all  the  states  resort  to  borrowing  money  and  all 
the  states  incur  debts.  The  total  of  the  gross  debt  for  all  the 
states  in  1919  was  $744,382,933,  or  $7.08  per  capita.  New 
York  led  the  states  with  a  total  debt  of  more  than  $238,000,000, 
but  Massachusetts  with  more  than  $133,000,000  had  the 
greatest  per  capita  debt,  $34.77.^  New  Jersey  and  Nebraska 
had  the  smallest  per  capita  debts,  standing  at  four  cents  and 
sixteen  cents,  respectively.  These  debts  may  be  classified  as 
(i)  funded,  that  is,  money  borrowed  on  the  security  of  bonds 
sold  to  the  public;  (2)  floating,  for  which  there  is  no  cash  in 
the  treasury  or  other  assets  specifically  provided;  and  (3)  the 
current  debt,  for  the  redemption  of  which  provision  is  fully 
made  by  cash  on  hand  or  revenues  levied  but  uncollected. 

All  states  are  prohibited  from  incurring  a  debt  for  anything  constitu- 
but  a  public  purpose.    What  a  public  purpose  is  may  be  deter-  tations  on*" 
mined  in  each  particular  case  on  the  basis  of  a  taxpayer's  suit.^  debtedness  • 
In  general,  while  money  may  be  raised  by  taxation  or  obtained  (0  Purpose 
through  borrowing  for  the  establishment  of  public  works  or  the  debt 
the  relief  of  the  poor,  for  educational  purposes,  and  for  pen-  incurred 
sions  and  bounties,  it  may  not  be  borrowed  and  appropriated 
for  the  purpose  of  improving  or  aiding  individuals.^    In  addi- 
tion to  this  general  constitutional  restriction,  the  constitutions 
of  the  different  states  make  other  limitations.    Many  states  (2)  Debt 
prohibit  the  legislature  from  creating  any  state  debt,  but  imme- 
diately thereafter  enumerate  exceptions ;  for  example,  Georgia 
and  Texas  prohibit  the  creation  of  any  debt  except  to  pay 
the  existing  debt.    Other  states,  like  Illinois,  Iowa,  and  New 
Mexico,  limit  the  incurring  of  debt  except  to  repel  invasion, 

iSee  Department  of  Commerce,  Bureau  of  the  Census,  Financial 
Statistics  of  States  (1919),  p.  112. 

-This  is  an  action  brought  by  a  taxpayer  to  test  the  validity  of  the 
laws  levying  the  tax  assessed  against  him. 

3See  Emlin  McCiain,  Constitutional  Law  of  the  United  States, 
pp.  124-127,  with  cases. 


2  36     STATE  AND  MUNICIPAL  GOVERNMENT 

to  suppress  insurrection,  or  to  defend  the  state  in  war.  In 
addition  to  these  Hmitations  of  purpose,  most  states  provide 

[Debt  limitations  in  amount.    These  Hmitations,  known  as  the  debt 

limit,  may  be  in  the  nature  either  of  a  specific  sum  or  of  a 
percentage  of  the  assessed  value  of  taxable  property.  Only 
three  of  the  forty-eight  states  have  no  debt  limits  of  any  sort. 

Payment  of  By  far  the  greater  portion  of  the  debts  of  the  state  are 
funded;  that  is,  secured  by  bonds  held  by  the  public.  Origi- 
nally there  were  no  provisions  made  for  the  payment  of  these 
bonds  at  their  maturity.  Few  states  had  the  courage  or  the 
resources  to  levy  taxes  in  any  current  year  so  far  in  excess 
of  the  expenses  as  to  enable  them  to  redeem  the  bonds  which 
fell  due.  They  therefore  resorted  to  the  practice  of  issuing  and 
selling  fresh  bonds  to  pay  the  obligations  of  the  preceding  issue. 
In  this  way,  although  the  interest  charges  might  possibly  be 
diminished  in  the  subsequent  issues,  the  amount  of  the  state 
debt  did  not  decrease.  Two  methods  are  now  in  vogue  for  the 
extinction  of  bond  issues. 

(i)  The  The  sinking-fund  system  provides  for  the  annual  appropria- 

sinking  .  .  ,  .   ,      .       .  r-r-      i 

fund  tions  ot   money  which   is   invested  and  which,   at   compound 

interest,  is  expected  to  be  sufficient  to  extinguish  a  debt  at  its 
maturity.  Theoretically  there  is  little  objection  to  this  system, 
and  perhaps  it  may  be  somewhat  less  expensive  than  the  sys- 
tem later  to  be  described,  but  there  are  very  strong  practical 
objections  which  the  experiences  of  many  states  have  shown  to 
outweigh  any  theoretical  advantage.  In  the  first  place,  the 
annual  appropriation  may  possibly  not  be  made  because  of 
unforeseen  expenses  or  demands  upon  the  resources  of  the  state. 
Once  let  the  legislature  omit  a  single  appropriation  and  it  be- 
comes increasingly  difficult  for  subsequent  legislatures  to  make 
up  the  deficit.  Secondly,  the  money  so  appropriated  is  cared 
for  by  the  state  treasurer,  the  sinking-fund  commissioner,  or 
some  board  who  invests  the  money.  It  is  true  that  most  states 
restrict  and  limit  the  free  discretion  of  the  sinking-fund  com- 
missions. Nevertheless,  even  within  these  limits,  there  is  too 
often  an  opportunity  for  making  bad  investments.  Moreover, 
since  the  states  borrow  money  for  terms  of  twenty,  thirty,  or 
even  fifty  years,  an  entire  generation  may  lapse  before  the  fund 


STATE  FINANCE  237 

is  called  upon  to  make  its  payment.  This  length  of  time  has 
occasionally  given  a  sense  of  security  to  commissioners  which 
they  have  grossly  misused.  Thus,  it  has  happened  that  in  case 
after  case  an  issue  of  bonds  for  which  an  adequate  sinking 
fund  was  provided  by  law  cannot  be  retired  on  its  maturity 
because  the  fund  is  not  sufficient  to  fulfill  that  purpose. 

The  more  modern  way  of  managing  a  state  debt  is  by  the  (2)  serial 
issuance  of  serial  bonds.  A  certain  proportion  of  these  bonds 
mature  annually,  biennially,  or  at  any  period  the  legislature 
sees  fit  to  determine.  The  state  is  thus  called  upon  to  pay  a 
constantly  decreasing  amount  for  interest.  But  more  important 
than  that,  the  state  is  compelled  every  year  or  at  certain  periods 
to  raise  by  taxation  a  sufficient  sum  to  redeem  the  quota  of 
bonds  due  at  that  date.  Thus,  at  the  end  of  the  period  for 
which  the  debt  has  been  incurred  the  entire  issue  has  been 
redeemed.  Should  the  legislature  fail  to  appropriate  the  money 
to  redeem  the  bonds  due  at  any  particular  date  the  credit  of 
the  state  would  suffer  immediately.  In  the  case  of  failure  to 
appropriate  for  the  sinking  fund  the  injury  to  the  credit  of 
the  state  is  more  remote.  This  method  has  none  of  the  dis- 
advantages of  the  sinking-fund  system,  but  it  does  require 
each  legislature  to  appropriate  a  sum  and  thus  raise  a  larger 
annual  appropriation  than  is  necessary  under  the  sinking-fund 
system.  The  sinking  fund  gains  by  compound  interest ;  the 
serial  plan  gains  by  saving  interest  which  the  state  has  to  pay 
on  the  entire  issue.  As  has  been  said,  there  is  very  little 
difference  in  the  actual  expense.  Experience,  however,  shows 
that  there  is  very  great  saving  in  practice. 


CHAPTER  XIII 

THE  LEGAL  SYSTEM  OF  THE  STATES 
I.  Sources  of  State  Law 

Importance        State  laws  are  more  important  to  the  average  citizen  in  his 
^^s  ^        daily  life  than  federal  laws.    According  to  the  original  con- 
ception of  the  Federal  Constitution,  in  the  minds  of  the  framers 
the  national  government  was  given  the  power  to  legislate  con- 
cerning affairs  which  affected  the  nation  as  a  whole,  but  the 
control  of  the  individual  in  politics,  in  business,  and  in  his 
domestic  relations  was  left  to  the  states.    Interpretation  and 
construction  by  legislative  and  executive  authority,  by  party  or- 
ganizations and  by  public  opinion,  and  especially  legal  changes 
like  the  Fourteenth  and  Fifteenth  Amendments  have  greatly 
extended  the  sphere  of  action  and  increased  the  power  of  the 
federal  government.    Yet  it  may  safely  be  asserted  that  the  ma- 
jority of  the  ordinary  everyday  concerns  of  a  citizen  are  deter- 
mined by  state  rather  than  by  federal  law.    This  is  more  clearly 
understood  when  it  is  remembered  that  the  states  and  not  Con- 
gress possess  the  police  power.  By  the  police  power  is  meant  the 
power  to  regulate  the  health,  morals,  convenience,  and  general 
welfare  of  the  citizens.    It  is  true  that  the  interstate  commerce 
acts  and  the  regulations  of  the  Federal  Trade  Commission  have 
apparently  encroached  upon  this  field  of  state  control,  but  the 
authority  of  Congress  in  this  sphere  is  only  incidental  to  some 
specific  power  granted  to  Congress,  like  the  power  to  regulate 
commerce  or  to  levy  taxes.    Congress  may  not  directly  prohibit 
child  labor;  the  states  may.    Congress  may  not  legislate  con- 
cerning the  morals  of  the  citizens  of  the  state  except  through 
interstate   commerce   or   taxation ;    the   states   may   make   an 
immoral  action  a  crime.    This  is  but  another  way  of  saying 
that  practically  all   criminal   law  is   state   law,   not   national. 
The  property  of  the  citizen  is  determined  and  protected  by 

238 


THE  LEGAL  SYSTEM  OF  THE  STATES         239 

state,  not  federal,  law.  It  is  true  that  the  Fourteenth  Amend- 
ment prohibits  a  state  from  depriving  a  citizen  of  his  property 
without  due  process  of  law,  and  that  this  gives  the  Supreme 
Court  of  the  United  States  the  power  to  review  state  legisla- 
tion; but  it  does  not  mean  that  Congress  may  legislate  to 
protect  the  property  of  a  citizen,  except  against  taking  without 
due  process  or  contrary  to  the  procedure,  forms,  and  spirit  of 
American  law.  In  the  same  way  the  life  and  liberty  of  a  citi- 
zen depend  upon  state,  not  upon  federal,  legislation,  although, 
under  the  Fourteenth  Amendment,  the  Supreme  Court  may- 
review  such  state  legislation  in  order  to  see  that  it  does  not 
take  away  due  process  of  law.  Thus  the  court  has  said,  "It 
[the  Fourteenth  Amendment]  does  not  invest  Congress  with 
power  to  legislate  upon  subjects  which  are  within  the  domain 
of  state  legislation ;  but  to  provide  modes  of  relief  against 
state  legislation,  or  state  action.  .  .  ."^  Moreover,  it  should  be 
remembered  that  the  political  activities  of  the  citizens  are 
determined  by  state,  not  federal,  law.  The  Constitution  guar- 
antees to  every  state  a  republican  form  of  government  and 
prohibits  any  state  from  disfranchising  a  citizen  of  the  United 
States  on  account  of  race,  color,  previous  condition  of  servi- 
tude, or  sex.  Beyond  this  the  state  determines  who  shall  take 
part  in  the  government  and  what  the  form  of  government  shall 
be,  and  makes  the  laws  upon  which  the  life,  liberty,  property, 
and  welfare  of  its  citizens  depend. 

A  law  has  been  defined  as  "a  rule  of  civil  conduct  pre-  Definition 
scribed  by  the  supreme  power  in  a  state,  commanding  what  °  *^ 
is  right  and  prohibiting  what  is  wrong."-  Certain  words  in  this 
definition  need  explanation,  (i)  Law  is  a  rule;  that  is,  it  is 
something  permanent  (until  changed  by  the  governing  author- 
ity), uniform,  and  general.  It  must  apply  not  to  a  single 
individual  but  to  all  individuals  or  to  all  of  a  certain  class 
within  the  community  or  society.  It  differs  from  advice  which 
a  citizen  is  at  liberty  to  follow  or  not,  in  that  it  depends  not 
upon  the  approval  of  the  citizen  but  upon  the  will  of  the  maker. 

^  Civil   Rights    Cases,    109   U.    S.   3,    11.     See   also    Everett    Kimball, 
National  Government  of  the  United  States,  p.  393. 
2Blackstone,  Commentaries,  Introduction,  pp.  44-46. 


240      STATE  AND  MUNICIPAL  GOVERNMENT 

It  differs  from  a  contract  entered  into  by  the  citizen  in  that 
the  rule  is  a  command  directed  to  the  citizen.  A  contract  in 
popular  language  is  an  "I  will"  or  "I  will  not";  law  is  a 
"Thou  shalt."  (2)  A  law  is  a  rule  of  civil  conduct,  thereby 
distinguishing  it  from  rules  for  moral  conduct  and  rules  of 
faith.  This  does  not  mean  that  law  may  not  deal  with  morals 
or  religion.  It  may;  but  law  deals  primarily  with  the  citizen 
in  relation  to  other  citizens,  and  their  union  in  the  political 
community  or  society  known  as  the  state.  (3)  A  law  is  pre- 
scribed; that  is,  must  be  notified  to  the  people.  This  may 
be  done  in  various  ways :  by  universal  tradition  and  long  prac- 
tice, as  is  the  common  law;  by  proclamation,  either  written 
or  spoken,  which  may  call  attention  of  the  citizens  to  the  law ; 
or  by  publication  of  the  statutes.  (4)  A  law  is  a  rule  pre- 
scribed by  the  supreme  power  of  the  state.  In  the  state  and 
national  governments  of  the  United  States  and  in  direct  legis- 
lation the  people  are  sovereign.  The  people  act  directly  in  the 
acceptance  of  their  constitution  by  means  of  the  initiative,  the 
referendum,  and  the  recall,  or  indirectly  through  their  repre- 
sentatives in  the  legislature.  Law  is  the  rule  prescribed  by  the 
people,  either  directly  or  indirectly.  It  is  true  that  the  people 
in  the  legislature  may  delegate  certain  subordinate  legislative 
functions  to  municipalities  and  towns,  but  these  ordinances  or 
by-laws  may  at  any  time  be  reversed,  amended,  or  repealed  by 
the  action  of  the  supreme  legislative  power  in  the  state  or  by 
the  people  acting  directly  or  through  their  agent  the  legislature. 
Sources  of  Without  attempting  a  complete  classification  of  all  the  pos- 
sible sources  from  which  state  law  may  be  derived,  the  fol- 
lowing outline  will  indicate  the  composition  of  by  far  the  larger 
part  of  the  law  as  administered  by  the  state  courts.  This 
law  is  derived  from  four  main  sources —  ( i )  statutory  law, 
(2)  international  law,  (3)  common  law,  (4)  equity.^ 

^This  classification  of  the  sources  of  state  law  is  not  a  mutually  exclu- 
sive one.  International  law  is  composed  in  part  of  statutory  law  (that 
is,  treaties  nnd  a^rci'nicnts)  and  in  part  of  custom  and  usaRC.  In  the 
same  way,  although  romnion  law  had  its  origin  entirely  in  custom  it  is 
modified  and  developed  by  statutes.  So  also  equity,  which  originated  in 
the  decision  of  cases,  has  now  largely  been  reduced  to  statutes. 


state  law. 


THE  LEGAL  SYSTEM  OF  THE  STATES         241 

Statutory  law,  or,  as  it  is  sometimes  known,  written  law,  is  statutory 
the  conscious  and  formal  attempt  of  the  citizens  to  pre-  ^^' 
scribe  a  rule  of  civil  conduct,  to  make  a  law.  Statutory  law 
as  administered  by  the  state  includes  two  main  divisions : 
the  Federal  Constitution  and  the  constitution  of  the  state, 
and  each  of  these  divisions  is  subject  to  further  differentia- 
tion into  federal  statutes  and  treaties  and  state  laws  and 
municipal  ordinances. 

The  limitations  which  the  Federal  Constitution  prescribes  (i)TheFed- 
upon  state  legislation  and  state  activities  have  already  been  stuution 
discussed.^  It  is  sufficient  here  to  note  that  every  right  guaran- 
teed by  the  Constitution  to  the  citizens  of  the  United  States 
and  every  limitation  prescribed  by  the  Federal  Constitution 
upon  state  activities  is,  in  the  first  instance,  enforceable  in  the 
state  courts ;  that  is,  the  state  courts  may  overrule  the  activity 
of  any  state  official  or  declare  unconstitutional  any  act  of  a 
state  legislature  in  conflict  with  the  Federal  Constitution. 

In  like  manner  all  federal  statutes  passed  in  the  fields  of  [Federal 
legislation  which  are  granted  to  Congress  are  superior  to  ^  ^  "  ^^^ 
state  constitutions  and  state  legislation.  These  are  constantly 
increasing  in  number,  as  by  interpretation  and  amendment  the 
fields  of  national  action  are  extended.  Thus,  for  example, 
the  Volstead  Act,  by  enforcing  the  prohibition  amendment, 
nullified  much  state  legislation. 

The  Federal  Constitution  gives  to  the  president,  with  the  [Treaties] 
assent  of  the  Senate,  the  power  to  make  treaties.  These 
treaties,  like  acts  of  Congress,  are  superior  to  the  constitutions 
and  laws  of  the  states.  In  the  last  instance  they  are  enforce- 
able through  a  decision  of  the  Supreme  Court  of  the  United 
States,  but  any  state  court  may  properly  declare  state  action 
unconstitutional  by  reason  of  conflict  with  a  federal  treaty. 
The  supremacy  of  these  three  types  of  federal  law  over  any 
state  action  rests  upon  Article  VI  of  the  Constitution,  which 
says:  "This  Constitution  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof;  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land.  .  .  ." 

^See  pages  8-17. 


242      STATE  AND  MUNICIPAL  GOVERNMENT 


(2)  Stote 
constitu- 
tions 


[State 
statutes] 


[Municipal 
ordinances] 


Interna- 
tional law 


Common 
law 


The  federal  statutory  law  just  discussed  is  mainly  negative 
in  its  effect  upon  state  courts.  It  prevents  or  supersedes  state 
action.  The  positive  law  which  the  state  courts  enforce  is 
derived  in  the  first  instance  from  the  state  constitutions.  The 
nature  of  these  constitutions  has  been  already  discussed.^  It 
is  sufficient  here  to  note  that  they  not  only  provide  a  frame- 
work of  government  but  also  guarantee  to  the  citizens  certain 
rights  and  privileges.  Many  state  constitutions  go  even  further 
and  enact  codes  of  laws  which  are  applied  by  the  courts. 

The  greater  part  of  the  written  law  of  the  states,  however,  is 
to  be  found  in  the  form  of  statutes.  These  statutes  may  be 
the  result  either  of  a  bill  passed  by  the  legislature  or  of  an 
act  adopted  by  the  direct  action  of  the  people — the  initiative 
and  referendum.  Included  in  the  state  statutes,  although  not 
strictly  the  enactment  of  the  supreme  legislative  power  of  the 
states,  are  the  municipal  by-laws  and  ordinances  and  even  the 
regulations  adopted  by  administrative  commissions  acting  in 
pursuance  of  some  state  law.  State  statutes  as  thus  defined 
include  the  greater  part  of  the  civil  and  criminal  law  which 
the  state  courts  enforce.  This  body  of  law  is  increasing  with 
portentous  speed.  When  it  is  remembered  that  there  are 
forty-eight  state  legislatures,  the  majority  of  which  meet  every 
two  years,  and  that  each  produces  at  least  one  substantial 
volume  of  statutory  law  at  every  session,  it  will  be  seen  that 
the  body  of  law  in  the  United  States  is  enormous. 

International  law  possesses  the  character  both  of  statutory 
law,  in  that  it  may  be  a  formal  enactment  of  the  sovereign 
power  in  the  form  of  a  treaty,  and  of  common  or  customary 
law  (which  will  later  be  described),  in  that  it  depends  upon 
usage.  International  law  is  a  part  of  the  law  of  every  state. 
In  general  it  is  enforceable  only  in  the  federal  courts,  but  a 
state  court  might  negative  the  action  of  a  state  official  on  the 
ground  that  it  was  contrary  to  some  principle  of  international 
law.  Ordinarily,  however,  the  aggrieved  party  would  appeal 
from  the  action  of  the  state  official  to  a  United  States  court. 
Common  law,  or,  as  it  is  sometimes  known,  unwritten  law, 
was  the  original  basis  of  the  English  legal  system.    It  differs 

^Sce  pages  18-36. 


THE  LEGAL  SYSTEM  OF  THE  STATES        243 

from  statutory  law  in  several  important  respects.  Statutory 
law  is  formal  legislation ;  common  law  is  largely  based  on  cus- 
tom. Statutory  law  is  a  general  rule  made  by  the  legislature 
or  by  the  people  acting  directly ;  common  law  is  made  by  the 
judges  and  courts  in  applying  to  a  particular  case  a  rule  de- 
rived from  customs  which  "have  been  used  so  long  that  the 
memory  of  man  runneth  not  to  the  contrary."  In  its  origin 
common  law  was  derived  from  the  customs  of  the  various  race  [common 
elements  that  made  up  the  English  people ;  in  its  development  England] 
common  law  was  the  application  of  these  customs  by  the  judges 
to  the  particular  cases  brought  before  them.  At  a  very  early 
period  in  the  history  of  the  common-law  courts  the  judges  and 
lawyers  made  memoranda  of  decided  cases  and  much  later 
committed  their  records  and  decisions  to  writing.  Hence  it 
gradually  became  easier  to  consult  the  previous  cases  than  to 
determine  what  was  the  original  tradition  or  custom.  Common 
law  is  thus  case  law,  judge-made  law,  dependent  upon  prece- 
dent. Statutory  law  is  legislation,  the  making  of  a  rule  to  form 
a  new  precedent.  Statutory  law  may  be  easily  amended  or 
repealed  to  suit  changing  conditions ;  common  law  was  formerly 
supposed  to  embody  unchanging  principles  and  was  changed 
with  great  reluctance.  Statutory  changes  became  much  more 
frequent  in  England  and  America  in  the  eighteenth  century. 
The  English  colonists  at  first  considered  the  common  law  not 
suited  to  conditions  in  the  New  World,  and  in  New  England 
they  were  antagonistic  to  it.  Gradually,  and  in  varying  degrees 
in  different  colonies,  the  common  law  was  adopted  so  far  as 
it  was  applicable  to  the  new  frontier  conditions.^  After  the 
Revolution  there  was  a  tendency  in  some  states  to  declare  the 
doctrines  of  common  law  inapplicable  in  American  courts,  but 
this  was  merely  temporary.  Most  states  made  the  common 
law  of  England,  as  it  was  at  the  time  of  the  Revolution,  the 
basis  of  their  own  common  law.    Other  states,  by  statutory  [common 

1  ,1  ft  •      •    1  f  law  in  the 

enactments,  have  adopted  most  of  the  prmciples  of  common  united 
law.-    In  the  United  States  common  law  includes  not  only  the  states] 

ip.  S.  Reinsch,  English  Common  Law  in  Early  American  Colonies,  p.  58. 
2  In  Louisiana  the  Code  Napoleon  of  the  civil  law  prevails  in  civil 
matters,  but  the  English  common  law  is  used  in  criminal  cases. 


244      STATE  AND  MUNICIPAL  GOVERNMENT 

principles  evolved  from  the  decisions  of  the  courts  but  many- 
English  statutes  as  well.  Even  in  England  common  law  was 
added  to  by  acts  of  Parliament,  and  all  these  which  were  in 
force  in  the  colonies  at  the  time  of  the  separation  from  Eng- 
land, unless  repealed,  are  included  in  American  common  law. 
Finally,  American  common  law  is  subject  to  alteration  and 
addition  by  legislative  action  and  thus  in  part  resembles 
statute  law. 
Equity  It  is  extremely  difficult  to  give  a  satisfactory  description  of 

equity  in  a  few  words.  Some  understanding  of  the  term  may 
be  gained  from  a  brief  statement  of  its  origin.  As  has  been 
said,  during  Saxon  times  the  varynng  customs  were  the  basis 
of  the  English  legal  system.  With  the  Norman  conquest  and 
the  accession  of  William  the  First  and  his  immediate  successors, 
a  new  theory  came  into  English  jurisprudence.  The  king  was 
considered  the  fountain  of  justice.  He  himself  and  his  officers 
dispensed  justice  and  enforced  the  king's  will.  The  jurisdiction 
of  the  common-law  courts  was  greatly  restricted.  The  forms  of 
action  and  the  procedure  in  these  courts  were  not  flexible  enough 
to  grant  justice  in  the  rapidly  changing  conditions.  Conse- 
quently many  litigants,  after  they  had  been  refused  what  they 
felt  was  their  just  remedy  by  the  common-law  courts,  would 
appeal  to  the  king  in  person  in  his  character  as  the  fountain  of 
justice.  The  most  important  official  in  the  king's  court  was  his 
chancellor,  generally  an  official  of  the  Church  and  known  as 
the  keeper  of  the  king's  conscience.  From  the  very  earliest 
times  he  was  the  confidential  adviser  of  the  king.  When  appeals 
from  the  common-law  courts  became  too  numerous  for  the 
king  to  attend  to  in  person  they  were  turned  over  to  the  chan- 
cellor, who  became  the  head  of  a  special  court  where  these 
petitions  for  relief  were  heard.  This  court  was  known  as  the 
chancellor's  court  or,  later,  the  court  of  chancery. 
Basis  of  the  The  common-law  courts  were  bound  by  precedent.  The 
orthe""^  chancellor  was  not  supposed  at  first  to  be  bound  by  the  deci- 
chanceiior  sions  of  the  common-law  courts  or  to  be  limited  in  any  way  other 
than  by  his  conscience.  He  was  supposed  to  do  justice,  to  grant 
relief,  or  to  provide  remedies  in  case  the  common-law  courts 
could  not  grant  relief  or  provide   a  remedy  consonant  with 


THE  LEGAL  SYSTEM  OF  THE  STATES 


<&> 


justice.  Although  originally  the  chancellor  was  not  bound  by- 
previous  decisions  and  precedents,  his  decisions  were  preserved 
and  in  time  came  to  be  regarded  as  precedents  in  similar  cases. 
Thus,  there  grew  up  beside  the  common  law,  and  in  many  ways 
superior  to  it,  the  precedents  of  the  court  of  chancery — a  set 
of  principles  and  a  procedure  which  is  known  as  equity. 

Today  equity  procedure  is  almost  as  rigid  as  the  procedure  character 
at  law ;  that  is,  there  have  been  evolved  precedents,  rules,  and  jurisdiction 
maxims  which  determine  its  use.    There  is  this  difference,  how- 
ever, that  remedies  in  equity  are  more  easily  adjustable  to  the 
circumstances  of  particular  cases.    A  discussion  of  a  few  of 
the  maxims  of  equity  will  make  this  clear. 

''Equity  will  not  suffer  a  wrong  to  be  without  a  remedy."  Maxims  of 

.  equity 

This  is  the  key  to  the  whole  system.  In  law  there  is  no  wrong 
suffered  unless  the  law  provides  a  remedy.  Equity  will  not 
allow  a  wrong  to  be  committed.  It  provides  a  remedy  for  every 
wrong  and  even  more.  It  sees  to  it  that  the  remedy  is  an  ade- 
quate one.  ''Equity  acts  in  personam.''  By  this  is  meant  that 
equity  directs  the  performance  or  the  cessation  of  certain  acts 
which  are  necessary  that  justice  may  be  done.  A  decision  at 
law  in  criminal  cases  results  in  a  sentence — imprisonment  or 
fine.  A  decree  in  equity  is  directed  against  a  person  and  is  a 
command  to  him  to  do  a  thing  or  to  refrain  from  doing  a  thing. 
The  limit  of  a  remedy  in  law  is  the  property  which  may  be 
seized  and  sold  to  satisfy  damages.  In  equity  a  person  may  be 
punished  for  contempt  of  court;  that  is,  for  refusal  to  obey 
the  decree.  Law  gives  damages.  Equity  compels  performance. 
"He  who  comes  into  equity  must  do  so  with  clean  hands." 
This  means  that  if  a  litigant  claims  fraud,  he  must  be  free  from 
fraud  himself.  "He  who  seeks  equity  must  do  equity!"  This 
means  that  he  not  only  must  have  clean  hands  but  must  be 
willing  to  do  what  is  right  and  fair  in  the  whole  transaction. 

The  federal  courts  administer  both  law  and  equity.    There  Eq"ity.i° 

the  United 

are  no  separate  and  distinct  courts.    About  half  of  the  states  states 
follow  this  practice,  and  most  courts  of  general  jurisdiction  sit 
as  courts  of  law  or  of  equity  and  may  grant  legal  or  equitable 
relief  according  to  the  nature  of  the  case.     In  a  few  states 
the  distinction  between  legal  and  equitable  remedies  has  been 


246      STATE  AND  MUNICIPAL  GOVERNMENT 

abolished.^  This  has  been  accomplished  by  the  adoption  of 
what  is  known  as  "code  procedure,"  which  attempts  to  pre- 
scribe a  form  of  action  for  every  case.  In  so  doing,  the  codes 
utilize  both  the  common-law  procedure  and  the  reliefs  of  equity. 
Hence  it  is  correct  to  assume  that  equity  is  administered  in 
the  courts  of  every  state.  This  merging  of  law  and  equity,  and 
the  assumption  so  general  in  the  United  States  that  law  is  too 
technical  for  anyone  but  trained  lawyers,  have  made  the  dis- 
tinction between  these  two  branches  of  law  a  matter  of 
ignorance  or  of  indifference  to  the  average  person. 


Legal 
rights 


Rights 
in  rem 


Rights 

in  personam 


2.  Rights  of  Persons  and  Property 

A  legal  right  may  be  defined  as  a  power,  interest,  or  privilege 
recognized  and  protected  by  law.  A  legal  wrong  is  a  violation 
of  a  legal  right.  A  legal  remedy  is  a  method  employed  by  the 
law  to  enforce  a  legal  right  or  redress  a  legal  wrong.-  Legal 
rights,  however,  may  be  divided  into  two  classes.  One  class  of 
rights  comprises  those  which  the  possessor  holds  against  the 
entire  community  and  which  the  whole  community  is  bound  to 
respect.  This  class  of  rights  is  sometimes  called  the  rights 
of  ownership  or,  in  more  technical  language,  rights  in  rem. 
Another  class  of  rights,  however,  consists  of  those  which  the 
possessor  may  enforce  against  particular  persons  only.  These 
correspond  to  obligations  on  the  part  of  such  persons  to  act 
or  to  refrain  from  action  in  regard  to  a  subject  matter  of  the 
right.  These  rights  are  called  rights  of  obligation,  or  rights 
in  personam.  Both  types  of  rights  may  be  illustrated  by  a 
contract  between  two  parties  by  which  one  promises  to  pay 
for  an  article  and  the  other  to  deliver  the  article.  In  such  a 
case  the  person  receiving  the  goods  acquires  a  right  in  rem, 
while  the  person  receiving  the  promise  acquires  a  right  in 
personam.^  In  the  one  case  the  state  will  protect  the  owner  of 
the  goods  in  his  possession  of  them  against  the  whole  com- 
munity. The  owner  has  the  right  of  ownership.  On  the  other 
hand,  the  one  receiving  the  promise  to  pay  has  acquired  a  right 

'  California,   Connecticut,   Indiana,   Minnesota,   Missouri,   New   York, 
Ohio,  South   Carolina,  Wisconsin,  and  other  Western  states. 
-W.  L.  Clark,  Elementary  Law,  p.  67.  -'Ibid.  p.  69. 


THE  LEGAL  SYSTEM  OF  THE  STATES         247 

in  personam  against  the  person  making  such  a  promise.  The 
law  will  protect  him  in  the  exercise  of  this  right,  not  as 
against  the  whole  community  but  as  against  the  person  making 
the  promise. 

All  free  governments  recognize  three  fundamental  rights  in  Fundamen- 
rem :  the  right  of  personal  security,  the  right  of  personal  liberty,  ,„  rem 
the  right  of  private  property.     The  constitutions  of  all  the 
states  guarantee  these  rights. 

The  right  of  personal  security  is  the  right  to  life  which  is  Right  of 

,      .    ,  .  ,  .  .         personal 

recognized  as  the  natural  right  of  every  man  unless  his  exist-  security 
ence  has  become  a  menace  to  the  state  or  unless  his  life  is 
needed  for  the  protection  of  the  state.  This  right  is  the  most 
fundamental  one.  The  right  of  personal  security  includes  more 
than  mere  existence.  It  includes  the  right  to  the  use  of  the 
limbs.  A  legal  distinction  which  is  not  always  clear  is  made 
between  the  limbs  and  the  body.  Thus  a  person  may  be  justi- 
fied in  using  any  amount  of  force,  even  to  the  extent  of  killing 
a  person  who  threatened  to  destroy  his  life  or  limbs.  But  he 
would  not  be  justified  in  killing  another  who  merely  threatened 
an  injury  to  his  body.^ 

Personal  liberty  means   the  right  of  an  individual   to  act  Rights  of 

,        .  -Ill  T        L      personal 

with  freedom  except  so  far  as  he  is  restrained  by  law.  In  the  freedom 
constitutions  of  the  states  liberty  means  more  than  this,  and 
includes  all  those  rights  necessary  for  the  pursuit  of  happiness. 
These  rights,  however,  are  not  necessarily  included  in  the  legal 
conception  of  the  word  "liberty."  Rather  they  are  moral  rights. 
Personal  liberty  in  the  legal  sense  is  the  freedom  of  the  in- 
dividual so  far  as  he  is  not  restricted  by  law.  Since  the  law 
may  act  differently  upon  different  classes,  it  is  possible  to  speak 
of  the  right  of  personal  liberty  in  a  state  where  slavery  exists, 
provided  slavery  is  established  by  law.  Personal  liberty,  more- 
over, is  generally  held  to  comprise  more  than  mere  freedom  of 
movement  and  may  include  freedom  of  thought,  speech,  and 

1  According  to  legal  tradition,  which  carries  us  back  to  less  civilized 
days,  the  limbs  include  the  arms,  legs,  eyes,  front  teeth,  and  all  parts 
the  deprivation  of  which  would  render  a  person  less  able  to  defend 
himself  in  a  fight.  Thus  a  threatened  injury  to  the  eye  might  justify 
the  use  of  any  amount  of  force  in  defense;  not  so  in  the  case  of  a 
threatened  injury  to  the  nose. 


248      STATE  AND  MUNICIPAL  GOVERNMENT 

the  right  to  pursue  any  lawful  calling.  It  should  be  repeated, 
however,  that  the  rights  of  thought,  speech,  and  pursuit  of 
business  are  conditioned  upon  the  law  of  the  state,  which  may 
make  certain  callings  illegal,  may  prohibit  or  limit  the  right 
to  speak  and  publish  certain  matters,  and  may  restrict  the 
freedom  of  movement  of  its  citizens. 
Right  of  All  states  recognize  the  right  of  an  individual  to  possess  and 

property  ^^^  things  unconnected  with  his  person.  This  is  the  right  of 
private  property.  In  strict  legal  theory  all  property  within  the 
state  is  subject  to  the  sovereign  power  of  the  state,  and  thus  it 
may  perhaps  be  technically  incorrect  to  speak  of  the  absolute 
o\\Tiership  of  any  private  property.  In  fact,  the  legal  phrase 
by  which  private  ownership  of  land  is  described  is  borrowed 
from  the  feudal  system,  in  which  the  sovereign  was  recognized 
as  the  supreme  landlord  who  granted  the  land  to  his  tenants 
according  to  the  various  forms  of  tenure.  Thus  today  the  most 
absolute  ownership  of  land  is  described  as  being  in  fee  simple. 
Another  distinction  must  be  made  with  regard  to  the  right  of 
property ;  namely,  between  the  rights  of  ownership  and  of 
Ownership;  posscssion.  Ownership  involves  the  right  of  absolute  control 
possession  ^^  ^^^  property,  subject  only  to  the  law  of  the  state.  Posses- 
sion, however,  is  the  immediate  holding  of  the  thing.  It  may 
be  wrongful  possession,  as  in  the  case  of  larceny,  or  it  may  be 
rightful  possession,  as  in  the  case  of  leasing.  In  fact,  a  lease 
for  a  piece  of  land  illustrates  both  the  ownership  and  the 
possession  of  the  land.  The  lessor  owns  the  land  and  may 
dispose  of  it  in  any  way  he  sees  fit,  subject,  however,  to  the 
rights  of  the  lessee  as  expressed  in  his  lease.  The  lessee,  on  the 
other  hand,  does  not  own  the  land,  but  has  possession  of  it ; 
that  is,  he  may  hold  the  land  during  the  duration  of  his  lease 
and  use  it  according  to  the  terms  of  his  lease. 
Ownership  Private  ownership  of  property  is  subject  to  certain  limita- 
'""  tions.    The  chief  of  these,  as  recognized  by  the  law,  are  the 

(i)  By  rights  following :  (i)  An  owner  may  not  use  his  property  so  as  to 
interfere  with  the  rights  of  others.  The  legal  golden  rule  is 
expressed  in  the  Latin  maxim  Sic  utere  tuo  ut  alicmim  non 
lardas  (So  use  your  own  as  not  to  injure  that  of  another). 
(2)  The  private  property  of  an  individual  may  be  taken  to 


THE  LEGAL  SYSTEM  OF  THE  STATES         249 

satisfy  his  just  debts.    These  debts  may  be  obligations  which  (2)Byiia- 
he  has  incurred  in  business  transactions  or  damages  for  which  ^^^^^ 
he  is  liable  through  the  injury  of  the  rights  of  others.    Thus, 
if  the  court  should  award  damages  against  a  motorist  for  in- 
juries he  had  inflicted  upon  another  person,  the  property  of 
the  motorist  might  be  sold  at  auction  to  satisfy  this  claim. 
Most  states,  however,  except  from  seizure  to  satisfy  debts  such 
property  as  the  tools  or  implements  of  one's  trade  or  occupa- 
tion, the  declared  homestead  of  a  householder,  and  sometimes 
an  additional  exemption  known  as  the  poor  debtor's  exemp- 
tion, or  the  allowance  of  the  poor  law.    (3)   The  property  of  (3»Byiia- 
every  owner  is  subject  to  the  right  of  taxation  on  the  part  of  taxes 
the  government.    This   right  of   taxation   is   an  inherent  at- 
tribute of  sovereignty  and  may  be  exercised  without  limitations 
other  than  those  prescribed  by  the  constitution.    Private  prop- 
erty may,  by  due  process  of  law,  be  seized  and  sold  to  satisfy 
the  demands  of  taxation.    (4)  All  private  property  is  held  sub-  (4)  By  right 

.  .  of  eminent 

ject  to  the  right  of  emment  domam.  This  is  the  right  of  the  domain 
state,  or  of  some  corporation  created  by  the  state  to  serve  in  a 
semi-public  function  such  as  building  and  operating  a  railroad, 
to  acquire  specific  property.  The  right  of  eminent  domain 
differs  from,  the  right  of  taxation  in  that  the  state  or  corporation 
taking  the  property  must  give  just  compensation  for  the  prop- 
erty so  taken.  Property  taken  under  the  right  of  eminent 
domain  can  only  be  taken  for  a  public  purpose.  Just  what  a 
public  purpose  is  varies  from  generation  to  generation  and  is 
subject  to  judicial  interpretation.    (5)  Finally,  all  private  prop-  (5)  By  the 

police  power 

erty  is  held  subject  to  the  police  power  of  the  state.  This  has 
been  briefly  defined  by  the  Supreme  Court  as  "nothing  more 
or  less  than  the  powers  of  government  inherent  in  every  sover- 
eignty .  .  .  that  is  to  say,  .  .  .  the  power  to  govern  men 
and  things."^  In  practice,  however,  it  includes  the  right  of 
the  state  to  make  reasonable  regulations  for  the  promotion  of 
the  morals,  safety,  health,  general  welfare,  and  convenience 
of  the  community .- 

''^ License  Cases,  s  How.  504,  583. 

2  The  power  of  the  state  over  the  property  of  its  citizens  has  been 
well  defined  by  the  Supreme  Court  as  follows:  "The  power  of  the  State 


2sO      STATE  AND  MUNICIPAL  GOVERNMENT 


Kinds  of 
property 


Real  and 

personal 
property 


Property  may  be  classified  according  to  its  tangibility  as 
corporeal  and  incorporeal  property.  Corporeal  property  is  that 
which  may  be  seen  and  touched.  Incorporeal  property,  how- 
ever, comprises  intangible  rights,  which  exist  only  in  the 
contemplation  of  the  law.  Thus  a  piece  of  land  is  corporeal 
property ;  the  right  of  passage  over  that  land  is  also  property, 
but  is  incorporeal  property.  Articles  bought  on  credit  are  cor- 
poreal property.  But  the  merchant,  as  a  creditor,  has  intangible 
and,  therefore,  incorporeal  property  in  the  right  he  has  to  the 
payment  of  a  debt.  When  the  debt  has  been  paid  this  incorporeal 
property  vanishes.  Other  examples  of  incorporeal  property  are 
franchises,  annuities,  rents,  stocks,  and  bonds. 

According  to  the  Roman  law  property  was  divided  into 
movables  and  immovables,  and  in  modern  English  and  Ameri- 
can law  immovable  property  is  described  as  "real  property" 
and  that  which  is  movable  as  "personal  property." 

over  the  property  of  the  citizen  ...  is  well  defined.  The  State  may 
take  his  property  for  public  uses,  upon  just  compensation  being  made 
therefor.  It  may  take  a  portion  of  his  property  by  way  of  taxation  for 
the  support  of  the  government.  It  may  control  the  use  and  possession 
of  his  property,  so  far  as  may  be  necessary  for  the  protection  of  the 
rights  of  others,  and  to  secure  to  them  the  equal  use  and  enjoyment  of 
their  property.  The  doctrine  that  each  one  must  so  use  his  own  as 
not  to  injure  his  neighbor — Sic  utere  tuo  ut  alienum  non  ladas — is  the 
rule  by  which  every  member  of  society  must  possess  and  enjoy  his 
property ;  and  all  legislation  essential  to  secure  this  common  and  equal 
enjoyment  is  a  legitimate  exercise  of  state  authority.  Except  in  cases 
where  property  may  be  destroyed  to  arrest  a  conflagration  or  the 
ravages  of  a  pestilence,  or  be  taken  under  the  pressure  of  an  immedi- 
ate or  overwhelming  necessity  to  prevent  a  public  calamity,  the  power 
of  the  State  over  the  property  of  the  citizen  does  not  extend  beyond 
such  limits. 

"It  is  true  that  the  legislation  which  secures  to  all  protection  in  their 
rights,  and  the  equal  use  and  enjoyment  of  their  property,  embraces  an 
almost  infinite  variety  of  subjects.  Whatever  affects  the  peace,  good 
order,  morals  and  health  of  the  community,  comes  within  its  scope  ;  and 
everyone  must  use  and  enjoy  his  property  subject  to  the  restrictions  which 
such  legislation  imposes.  What  is  termed  the  police  power  of  the  State, 
which,  from  the  language  often  used  respecting  it,  one  would  suppose 
to  be  an  undefined  and  irresponsible  clement  in  government,  can  only 
interfere  with  the  conduct  of  individuals  in  their  intercourse  with  each 
other  and  in  the  use  of  their  property,  so  far  as  may  be  required  to 
secure  these  objects." — Miinn  v.  Illinois,  94  U.  S.  113-154 


THE  LEGAL  SYSTEM  OF  THE  STATES         251 

According  to  Blackstone^  real  property  is  "such  as  is  perma- 
nent, fixed  and  immovable,  which  cannot  be  carried  out  of  its 
place.  .  .  ."  Personal  property  is  also  defined  as  "goods, 
money  and  all  other  movables  which  may  attend  the  owner's 
person  wherever  he  thinks  proper  to  go."  Real  property  is 
always  corporeal ;  personal  property  may  be  either  corporeal 
or  incorporeal.  Real  property  originally  included  land,  houses, 
and  such  things  as  were  attached  to  the  land ;  personal  prop- 
erty, on  the  other  hand,  at  first  included  chiefly  cattle,  weap- 
ons, and  household  utensils.  The  great  development  in  modern 
times  has  been  the  increase  of  personal  property,  particularly 
of  an  incorporeal  nature.  Thus,  much  of  our  wealth  is  in 
stocks,  bonds,  mortgages,  and  other  evidences  of  rights  which 
the  owner  may  possess. 

3.   Criminal  Law 

A  tort,  according  to  Blackstone,  is  a  private  wrong,  ''an  crimes  and 
infringement  or  privation  of  the  civil  rights  which  belong  to 
individuals  considered  merely  as  individuals."  A  crime  or  a 
public  wrong  is  a  "breach  and  violation  of  the  public  rights 
and  duties,  due  to  the  whole  community,  considered  as  a  com- 
munity, in  its  social  aggregate  capacity."^  In  spite  of  such 
high  authority  these  definitions  hardly  bring  out  the  real  dis- 
tinction between  a  crime  and  a  tort.  Both  are  wrongs  which 
an  individual  commits.  The  true  distinction  is  better  shown 
in  the  respective  modes  of  redress  allowed  by  law.  When  the 
state  on  its  own  responsibility  and  in  its  own  name  is  empow- 
ered by  law  to  prosecute  and  punish  an  act,  that  act  is  a  crime. 
When,  however,  an  act  renders  the  doer  liable  in  damages  to 
the  person  or  persons  wronged,  such  an  act  is  a  tort.  A  crime, 
therefore,  may  be  defined  as  an  act  or  omission  so  far  contrary 
to  public  policy  that  the  person  guilty  thereof  is  punished  for 
it  by  and  in  the  name  of  the  sovereign  body.  Thus  a  crime 
may  also  be  tort.  For  example,  if  A  knocks  down  B  this  is 
assault  and  battery,  and  B  may  sue  A  for  damages.  Consid- 
ered in  this  light  the  act  was  a  tort,  but  i\'s  act  may  also  be 

1  Commentaries,  Bk.  II,  p.  15. 
2Ibid.  Bk.  IV,  p.  s. 


2  52      STATE  AND  MUNICIPAL  GOVERNMENT 


Classifica- 
tion of 
crimes : 

Treason 


Felonies 


Common - 
law  and 
statutory 
felonies: 


(ij  Murder 


(a)  Man- 
slaughter 


considered  as  disturbing  the  peace  and  may  be  prosecuted  and 
punished  by  the  state.  Regarded  from  this  point  of  view,  the 
act  was  a  crime.  In  many  states  the  statutes  allow  civil  action  ; 
that  is,  suit  for  damages  for  wrongs  which  the  state  may 
punish  as  crimes. 

In  general,  crimes  are  classified  by  the  law,  as  treason, 
felonies,  misdemeanors,  in  order  of  their  enormity. 

Treason  is  defined  by  the  Federal  Constitution  and  the  con- 
stitutions of  the  states  as  levying  war  against  the  state  or 
adhering  to  the  enemies  or  giving  them  aid  and  comfort.  The 
crime  of  treason  is  regarded  as  a  fundamental  attack  upon  the 
existence  of  the  state  itself  and  thus  is  put  in  its  own  category. 

According  to  English  common  law  a  crime  was  a  felony  if 
punishable  by  death.  Since  the  restriction  of  the  death  penalty 
and  its  abolition  in  some  states,  this  distinction  is  no  longer 
valid.  In  the  jurisprudence  of  the  states  the  statutes  define 
all  the  felonies  which  were  formerly  considered  as  felonies  by 
English  common  law  and  add  to  this  list  many  crimes  whose 
enormity  seemed  to  justify  severe  punishment.  These  are 
called  statute  felonies. 

Without  attempting  a  complete  enumeration  of  the  common- 
law  and  statutory  felonies,  the  more  important  are  the  following : 

Murder  is  the  unlawful  killing  of  a  human  being  with  malice 
aforethought.  It  is  to  be  distinguished  from  homicide,  which 
means  the  killing  of  any  human  being.  IMurder,  however, 
involves,  first,  unlawful  killing  as  distinguished  from  an  execu- 
tion ordered  by  the  state;  second,  and  its  most  distinguishing 
characteristic,  it  must  be  with  malice  aforethought.  This  is 
a  technical  expression  which  may  be  defined  as  including  a  dis- 
regard of  the  rights  of  the  victim  and  the  duty  owed  to  society 
and  an  intent  to  commit  some  crime.  This  crime  in  itself  need 
not  be  homicide.  For  example,  if  a  person  in  the  attempt  to 
commit  robbery  unintentionally  kills  another  person,  the  act  is 
murder.  In  many  states  murder  has  been  divided  into  various 
degrees,  according  to  the  circumstances  of  the  homicide. 

Manslaughter  is  unlawful  homicide  without  malice  afore- 
thought. It  may  be  voluntary  or  involuntary.  V^oluntary  man- 
slaughter is  intentional  homicide  in  a  sudden  passion  caused  by 


THE  LEGAL  SYSTEM  OF  THE  STATES         253 

adequate  provocation,  but  without  malice  aforethought.  In- 
voluntary manslaughter  is  homicide  without  malice  and  with- 
out intention.  This  may  be  caused,  first,  by  the  performance 
of  some  unlawful  act  not  amounting  to  felony  nor  ordinarily 
tending  to  cause  death,  such  as  an  assault  from  which  unex- 
pected death  may  result.  For  example,  if  A  strikes  B,  and 
in  falling  B  fractures  his  skull  on  the  pavement,  A's  act  would 
probably  be  classified  as  involuntary  manslaughter.  Second, 
involuntary  manslaughter  may  also  be  the  result  of  the  negli- 
gent performance  of  some  lawful  act;  as,  for  example,  the 
careless  driving  of  a  motor  car.  Third,  it  also  may  result 
from  the  negligent  omission  to  perform  a  legal  duty ;  as,  to 
give  warning  before  the  explosion  of  a  blast  or  to  neglect  to  set 
the  signals  at  a  railroad  crossing. 

At  common  law,  arson  is  the  willful  and  malicious  burning  (3)  Arson 
of  a  dwelling-house  or  outhouse  of  another.  It  is  not  arson  for 
a  man  to  burn  his  own  house  nor  is  it  arson  for  a  man  to  burn 
another's  house  at  his  request  in  order  to  defraud  the  insurance 
company.  By  statute  the  burning  of  other  buildings,  such  as 
shops  and  warehouses,  is  made  arson. 

The  common-law  crime  of  burglary  is  very  carefully  defined.  (4)  Burglary 
It  is  the  breaking  and  entering  of  the  dwelling-house  of  an- 
other in  the  nighttime  with  the  intent  to  commit  felony  therein, 
whether  the  felony  is  actually  committed  or  not.  Five  elements 
must  be  present  to  constitute  this  crime,  (i)  There  must  be 
some  breaking  of  the  house.  Entrance  through  an  open  door 
or  window  to  commit  felony  is  not  burglary.  The  latch  must 
be  turned  or  the  window  raised  or  even  an  unlatched  door  must 
be  pushed  open  to  constitute  breaking.  (2)  There  must  be 
some  entry,  although  this  may  be  of  the  slightest ;  for  example, 
the  pushing  through  of  an  arm  or  gun  or  hook  for  the  purpose 
of  taking  goods.  (3)  The  house  must  be  a  dwelling-house, 
but  most  states  by  statute  make  it  burglary  to  break  and 
enter,  with  felonious  attempt,  buildings  other  than  dwellings. 
(4)  The  breaking  and  entering  must  be  in  the  nighttime;  that 
is,  "between  the  time  when  the  countenance  ceases  to  be  rea- 
sonably discernible  and  the  time  when  the  countenance  be- 
comes discernible."    (5)  Both  the  breaking  and  entering  must 


2  54      STATE  AND  MUNICIPAL  GOVERNIMENT 

be  with  the  intent  to  commit  some  felony,  although  the  felony 
itself  may  not  actually  have  been  committed. 

(5)  Larceny       Larceny  is  the  taking  and  carrying  away  of  the  personal 

goods  of  another  with  the  intent  to  steal.  This  is  an  extremely 
technical  crime,  but  involves  various  essentials,  (i)  The  thing 
taken  must  be  the  personal  property  of  another — that  is,  (a)  it 
must  be  personal,  not  real  property;  (b)  it  must  be  what  the 
state  recognizes  as  property;  (c)  it  must  be  owned  by  another. 
(2)  It  is  necessary  that  the  property  must  be  carried  away  from 
the  place  which  it  occupies.  Any  removal,  however  slight,  is 
sufficient.  (3)  There  must  be  an  intent  to  deprive  the  owner 
of  his  property ;  that  is,  to  steal.  This  intent  must  e.xist  at  the 
time  of  the  taking,  and  the  taking  must  be  without  the  right  of 
claim.  Larceny  is  divided  into  grand  and  petit  larceny  according 
to  the  value  of  the  property  stolen. 

(6)  Robbery       Robbery  is  an  aggravated  form  of  larceny.    It  involves  all 

the  elements  of  larceny  as  described  above  and,  in  addition, 
the  property  must  be  taken  from  another's  person  or  in  his 
actual  presence.  Moreover,  the  property  must  be  taken  either 
by  violence  or  by  inciting  fear.  Thus  a  pickpocket  is  guilty 
not  of  robbery  but  of  larceny. 

Common-  The  crimes  which  follow  were  classified  as  misdemeanors  by 

demeanors:  English  common  law,  although  in  many  states  some  of  these 
crimes  have  been  raised  to  the  rank  of  felonies. 

(i)  conspir-  Conspiracy  is  the  combination  of  two  or  more  persons  to 
commit  an  unlawful  act.  In  general  the  offense  is  divided  into 
three  heads :  ( i )  where  the  end  to  be  obtained  is  in  itself  a 
crime  (as,  for  example,  the  combination  of  two  or  more  persons 
to  commit  a  felony  such  as  murder  or  any  misdemeanor)  ; 
(2)  where  the  object  is  lawful,  but  the  means  by  which  it  is 
to  be  obtained  is  unlawful;  (3)  where  the  injury  to  the  third 
person,  if  inflicted  by  a  single  individual,  would  be  a  civil 
wrong  and  not  a  cfime.  The  germ  of  conspiracy  is  an  unlawful 
combination,  not  the  overt  act. 

(i)  Assault  Assault  is  the  threat  of  force  or  violence  to  do  corporeal 
attery  j^^^^  ^^  another.  Battery  is  the  unlawful  touching  of  the  per- 
son of  another  by  the  aggressor  or  by  some  substance  put  in 
motion   by  him.    An  assault  may  not  result   in  battery,  but 


THE  LEGAL  SYSTEM  OF  THE  STATES         255 

every  battery  necessarily  includes  an  assault.  Thus,  for  ex- 
ample, to  shoot  or  strike  at  another  and  to  miss  him  is  as- 
sault but  not  battery.  To  shoot  or  strike  a  person  is  assault 
and  battery. 

False  imprisonment  is  the  unlawful  restraint  of  another  per-  (3)  False 
son's  liberty.    There  must  be  actual  restraint  of  the  liberty  of  ment 
the  person.    This  may  be  in  a  jail  or  a  private  house,  or  even 
by  merely  detaining  him  on  the  street. 

A  common  nuisance  is  the  creation  or  maintenance  of  con-  (4)  Nuisance 
ditions  which  are  prejudicial  to  the  health,  comfort,  safety, 
property,  sense  of  decency,  or  morals  of  the  community  at 
large.  This  act  must  result  either  from  the  neglect  of  a  duty 
imposed  by  law  or  from  an  act  not  warranted  by  law,  and 
must  affect  the  community  at  large  and  not  merely  a  few 
individuals. 

By  common  law,  forgery  is  a  misdemeanor,  but  every  state  (5)  Forgery 
has  made  it  a  felony.  It  consists  in  the  false  making  or  alter-  ^°  "  ^""^^ 
ing,  with  intent  to  defraud,  of  any  writing  which  might  be  the 
foundation  of  a  legal  liability,  or  the  altering  of  writing  to  the 
prejudice  of  another  man's  rights.  To  constitute  the  crime 
the  alteration  must  be  false,  with  the  intent  to  defraud ;  the 
instrument  must  apparently  impose  a  legal  liability ;  and  the 
alteration  must  be  material.  Uttering  consists  of  the  offering 
directly  or  indirectly  of  a  forged  instrument. 

Any  willful  and  unjustifiable  disturbance  of  the  public  peace  (e)  Breach 
which  violates  public  order  is  a  breach  of  peace.    Any  public  °  ^^*^* 
act  of  indecorum  is  also  a  breach  of  peace. 

An  unlawful  assembly  takes  place  where  three  or  more  per-  (7)  uniaw- 

,,.,,.  .  .         ,  f  ful  assembly 

sons  meet  ( i )  with  the  intent  to  commit  a  crime  by  open  force  and  riot 
or  (2)  with  the  intent  to  carry  out  a  purpose,  whether  lawful 
or  not,  in  such  a  manner  as  to  give  a  firm  and  courageous  per- 
son reasonable  grounds  for  apprehension  that  a  breach  of  peace 
will  ensue.  A  riot  exists  where  an  unlawful  assembly  has 
actually  begun  to  execute  its  purpose  by  a  breach  of  peace 
and  to  the  terror  of  the  public,  or  where  a  lawful  assembly 
proceeds  to  execute  an  unlawful  purpose  to  the  terror  of  the 
people.  To  constitute  these  crimes  at  least  three  persons 
must  assemble. 


2  56      STATE  AND  MUNICIPAL  GOVERNMENT 

(8)  Libel  In  general,  libel  is  considered  as  the  malicious  publication  of 

any  writing,  picture,  or  representation  tending  to  expose  an- 
other person  to  hatred,  contempt,  or  ridicule.  It  applies  both 
to  the  defamatory  matter  published  and  to  the  offense  of 
publication.  The  law  regards  it  as  a  crime  against  the  public 
peace,  because  the  publication  of  a  libel  may  incite  a  breach 
of  peace ;  therefore,  in  the  prosecution  for  a  criminal  libel 
the  truth  of  the  publication  is  not  a  defense  unless  made  so 
by  statute. 

In  addition  to  the  foregoing,  the  laws  of  the  states  have 
made  many  other  acts  either  crimes  or  misdemeanors. 


4.    Torts 

Definition  A  tort  is  a  private  or  civil  wrong  or  injury.  More  broadly, 
a  tort  may  be  defined  as  a  breach  of  legal  duty  or  a  violation 
of  another's  right  for  which  the  injured  party  may  maintain 
an  action  at  law  for  damages.^  A  tort  is  always  a  violation  of  a 
right  in  rem ;  that  is,  a  right  which  a  person  holds  as  against 
the  whole  community,  A  tort,  moreover,  at  once  gives  rise  to 
a  right  of  action  in  personam ;  that  is,  against  the  person  com- 
mitting the  damage.  Thus  the  moment  a  right  in  rem  is 
violated,  a  new  relation  is  set  up  between  the  possessor  of  the 
right  and  the  wrongdoer.  The  possessor  of  the  right  obtains 
the  right  of  action  for  damages  for  the  injury  to  his  rights. 
As  has  been  shown,  torts  are  to  be  distinguished  from  crimes 
by  the  theories  of  the  objects  of  the  wrong  and  by  the  remedies, 
A  crime  is  punishable  by  state  prosecution,  a  tort  gives  rise  to 
a  private  claim  for  compensation  by  damages.  A  tort,  further- 
more, is  to  be  distinguished  from  a  breach  of  contract.  A  tort, 
as  has  been  said,  is  a  violation  of  a  right  in  rem  ;  that  is,  it  is 
-  a  breach  of  general  legal  duty  created  and  enforced  by  law, 
A  breach  of  contract,  however,  is  a  violation  of  a  right  in  per- 
sonam^ created  by  voluntary  agreement  but  enforced  by  law; 
that  is,  of  the  specific  obligation  set  up  by  the  contract.  This 
may  be  illustrated  as  follows :  A  person  becomes  a  passenger  on 
a  railway  car,  thereby  entering  into  a  contract  for  safe  carriage, 

^W.  L.  Clark,  Elementary  Law,  i)p.   131-132. 


THE  LEGAL  SYSTEM  OF  THE  STATES         257 

Through  the  neghgence  of  the  railway  company  the  person  is 
injured.  Has  he  suffered  a  tort  or  a  breach  of  contract?  The 
railroad  company  might  contend  that  it  was  merely  a  breach  of 
contract  for  which  the  plaintiff  might  recover  his  fare.  The 
courts,  however,  have  decided  that  the  railway  company  owes 
to  the  general  public,  and  to  the  plaintiff  in  particular,  the 
duty  of  exercising  care  and  thus  holds  that  injury,  arising 
through  negligence,  is  not  merely  a  breach  of  contract  but 
a  tort  as  well. 

It  is  extremely  difficult  to  make  a  complete  and  satisfac-  ciassifica- 
tory  classification  of  torts.  The  following  classification,  which  torts: 
is  abridged  and  adapted  from  Sir  Frederick  Pollock,  will 
give  some  idea  of  the  extent  of  the  subject.  Torts  may  be 
classified  on  a  threefold  basis,  according  to  their  scope  and 
effect.  Certain  wrongs  affect  the  safety  and  freedom  of  a  per- 
son. These  may  be  classified  as  personal  torts.  Others  may 
merely  affect  property,  and  thus  may  be  classified  as  torts 
against  possession  and  property.  Others  may  affect  persons  or 
property  or  both. 

(i)  Under  personal  wrongs  should  be  mentioned  assault  and  d)  personal 
battery  and  false  imprisonment.  Both  of  these  are  common-  '^''°°^* 
law  crimes  and  punishable  by  the  state.  But  as  they  also 
violate  a  personal  right,  the  aggressor  has  committed  a  tort 
for  which  the  injured  party  may  claim  damages.  (2)  Wrongs 
affecting  the  personal  relations  in  the  family.  These  include 
the  actions  which  a  husband  or  parent  or  employer  may  main- 
tain for  the  loss  of  services  or  expense  resulting  from  a  tort 
committed  upon  his  wife,  child,  or  employee.  Thus  a  husband 
may  bring  a  suit  for  damages  against  a  railroad  company  in 
whose  cars  his  wife  has  been  injured,  or  may  sue  another  per- 
son for  the  injuries  his  child  sustained  because  of  assault  and 
battery.  (3)  Wrongs  affecting  reputation,  or  defamation.  This 
is  slander  and  libel.  Slander  is  the  defamation  of  a  person  by 
words  or  gestures;  libel  is  the  defamation  by  writing.  In 
order  to  make  defamation  a  tort,  publication  is  necessary. 
Defamation  may  apply  either  to  persons  or  to  things.  Applied 
to  things,  it  is  called  slander  of  property  or  title.  (4)  Deceit 
is  the  making  of  a  false  statement  by  a  person  who  knows  its 


2  58      STATE  AND  MUNICIPAL  GOVERNMENT 


(2)  Wrongs 
to  posses- 
sion and 
property 


(3)  Wrongs 
to  person, 
estate,  and 
property 
generally 


falsity,  or  recklessly  disregards  whether  it  be  true  or  false,  to  a 
person  who  innocently  acts  upon  such  a  statement  and  thereby 
suffers  damage. 

The  most  important  of  the  wrongs  to  possession  and  prop- 
erty, and  the  one  of  the  widest  interpretation,  is  trespass.  In 
its  widest  legal  sense  trespass  includes  any  wrong  to  the  person 
or  property  of  another  committed  by  force.  Generally,  however, 
a  wrong  committed  to  the  person  by  force  is  known  as  assault 
and  battery ;  and  trespass,  in  its  narrowest  sense,  applies  only 
to  the  forcible  violation  of  corporeal  property.  Trespass  is 
thus  the  wrongful  and  forcible  disturbance  of  another's  posses- 
sion of  goods  or  lands.  It  includes  everything  from  the  peace- 
ful entry  upon  unfenced  land  to  the  forcible  destruction  or 
injury  of  real  or  personal  property,  the  latter  being  known  as 
trespass  vi  et  armis  (with  force  and  arms).  Any  invasion  of 
property  rights,  however  minute,  is  trespass.  The  gist  of  wrong 
in  trespass  is  the  disturbance  of  possession. 

Wrongs  to  person,  estate,  and  property  are  twofold, 
(i)  Nuisance  is  the  violation  of  the  legal  golden  rule  cover- 
ing property.  Sic  utere  tuo  nt  alienum  non  Icpdas  (Use  your 
own  so  as  not  to  injure  that  of  another).  It  consists  in 
doing  anything  wrongfully  or  permitting  anything  to  be  wrong- 
fully done  which  interferes  with  or  annoys  another  person 
in  the  enjoyment  of  his  legal  rights.  The  plaintiff  must  have 
a  legal  right,  and  it  must  be  proved  that  the  defendant 
has  wrongfully  or  illegally  committed  or  allowed  to  be  com- 
mitted a  wrongful  act.  The  nuisance  may  be  committed  against 
property,  both  personal  and  real,  corporeal  and  incorporeal, 
and  against  the  personal  enjoyment  of  health  and  comfort. 
Continuous  and  excessive  noise  may  constitute  a  nuisance. 
Vapors  and  noxious  smells  which  destroy  vegetation  are  nui- 
sances. Even  if  they  do  not  destroy  vegetation  but  render 
h'fe  unhealthy  or  even  uncomfortable,  they  are  regarded  as 
nuisances.  There  are  three  private  remedies  for  a  nuisance: 
(a)  abatement  by  act  of  the  party  injured — thus,  where  the 
branches  of  a  tree  extend  over  the  land  of  another  person  these 
may  be  cut  and  trimmed;  {b)  an  injunction  may  be  sought 
through  proceedings   in   equity;    (r)    an  action    for  damages 


THE  LEGAL  SYSTEM  OF  THE  STATES         259 

may  be  begun  in  the  courts.  (2)  Negligence.  There  are  three 
essential  elements  to  negligence.  The  first  is  failure  to  exer- 
cise commensurate  care  and  diligence.  If  this  failure  is  some- 
thing more  than  merely  inadvertence,  the  action  will  lie  for 
something  more  than  negligence.  Second,  a  breach  of  legal 
duty  must  be  involved ;  that  is,  the  sufferer  must  have  a  legal 
right  violated  through  the  carelessness  of  the  wrongdoer. 
Finally,  damage  must  result, 

5.    Contracts 

Chief  Justice  Marshall  defined  a  contract  as  follows:  ''An  Definition 
agreement  in  which  a  party  undertakes  to  do  or  not  to  do  a 
particular  thing."  ^  More  extensively,  a  contract  has  been  de- 
fined as  "an  agreement  enforceable  at  law,  made  between  two 
or  more  persons,  by  which  rights  are  acquired  by  one  or  more 
to  acts  or  forbearances  on  the  part  of  the  other  or  others." - 
Briefly,  a  contract  is  ''any  agreement  involving  legal  obliga- 
tion." To  be  valid  a  contract  generally  possesses  five  essen- 
tials :  ( I )  There  must  be  an  offer  and  acceptance ;  that  is,  one 
party  must  offer  to  perform  or  refrain  from  performing  a 
certain  task  and  the  other  party  must  accept  this  offer. 
(2)  The  agreement  must  be  made  in  the  form  prescribed  by 
law.  For  most  contracts  no  particular  form  is  necessary,  and 
an  oral  contract  may  be  as  binding  as  a  written  one.  Other 
contracts,  however,  like  the  sale  of  real  estate  or  of  goods 
worth  more  than  a  certain  amount,  or  a  contract  which  is  not 
to  be  performed  within  a  year,  must  be  written  in  the  forms 
prescribed  by  law.^  (3)  The  parties  must  be  capable  in  law 
of  making  a  valid  contract.  Thus  a  minor  may  not  make  a 
contract  without  the  assent  of  his  parents.  In  some  states  a 
married  man  may  not  dispose  of  his  real  estate  without  the 
consent  of  his  wife.    (4)  The  consent  expressed  in  the  offer 

14  Wheat.  IQ7. 

2W.  L.  Clark,  Contracts  (3d  ed.),  p.  2. 

3 Every  simple  contract  requires  a  "consideration";  that  is,  something 
which  moves  from  the  promisee  to  the  promisor  in  return  for  his 
promise.  This  consideration  need  not  be  a  payment  of  money,  but  may 
be  some  benefit  which  is  deemed  of  value  in  the  eyes  of  the  law. 


contracts 


260      STATE  AND  MUNICIPAL  GOVERNMENT 

and  acceptance  must  be  genuine ;  that  is,  there  must  be  no 
fraud  or  misunderstanding.  (5)  The  objects  and  purpose  of 
the  contract  must  be  legal.  Thus  a  contract  to  commit  crime 
is  illegal,  and  no  obligation  can  be  maintained  for  such  a  con- 
tract. In  like  manner,  agreements  which,  although  they  do 
not  violate  any  positive  law,  may  be  contrary  to  public  policy 
are  thus  considered  nonenforceable.  Thus,  all  gambling  trans- 
actions, agreements  by  which  a  parent  deprives  himself  of 
the  custody  of  his  child,  agreements  in  unreasonable  restraint 
of  trade  to  prevent  competition,  to  control  prices,  or  to  create 
monopoly,  and  agreements  exempting  a  person  from  liability 
for  negligence  are  unenforceable  in  the  courts. 
Particular  It  is  almost  impossible  to  classify  the  infinite  variety  of 
contracts  which  may  be  made,  but  a  few  types  may  be  men- 
tioned, (i)  Sales.  A  contract  for  sale  is  the  agreement  to 
transfer  the  title  to  goods  or  lands.  (2)  Bailments.  A  bail- 
ment may  be  roughly  defined  as  the  delivery  of  the  mere 
possession  of  a  piece  of  personal  propert}^  for  a  particular  pur- 
pose. This  delivery  is  accompanied  by  a  contract,  either  ex- 
pressed or  implied,  by  which  the  terms  and  conditions  of  the 
delivery  of  the  property  are  specified.  A  good  example  is  the 
delivery  of  a  watch  to  a  jeweler  for  repair.  The  implied  con- 
tract is  that  the  jeweler  agrees  to  keep  the  watch  safely  in  order 
to  repair  it  and  to  return  it  to  the  owner  when  called  for.  On  the 
other  hand,  the  owner  agrees  to  pay  for  the  service  performed. 
(3)  Negotiable  instruments.  These  form  a  most  important  and 
highly  specialized  type  of  contracts.  Under  this  heading  are 
included  promissory  notes,  checks,  drafts,  bills  of  exchange, 
and  so  forth.  The  chief  characteristic  of  a  negotiable  instru- 
ment is  that  it  may  be  transferred  from  one  owner  to  another 
by  mere  delivery  or  indorsement.  Such  indorsement  gives  the 
transferee  the  right  to  sue  in  his  own  name  as  if  he  were  the 
original  owner.  Another  characteristic  is  that  although  a  nego- 
tiable instrument  may  be  obtained  by  fraud,  if  it  is  transferred 
to  an  innocent  party  for  value  received  the  latter  may  sue  upon 
it  as  if  it  had  been  obtained  without  fraud.  (4)  Other  types  of 
contracts  are  guaranty  contracts,  by  which  one  party  becomes 
answerable  for  the  performance  of  some  duty  or  contract  of 


THE  LEGAL  SYSTEM  OF  THE  STATES         261 

another;  suretyship,  by  which  one  party  becomes  responsible 
for  the  debt ;  default  or  miscarriage  of  another ;  and  insur- 
ance, by  which  a  person  or  corporation  agrees  to  compensate 
another  for  loss. 

6.   Domestic  Relations 

Marriage  may  be  defined  as  the  voluntary  union  between  Marriage 
one  man  and  one  woman  to  continue  through  life  or  until  dis- 
solved by  judicial  decree.  In  the  United  States  and  other 
Christian  countries  this  is  the  only  type  of  marriage  recognized, 
although  under  the  Mohammedan  religion  polygamy  may  be 
practiced.  According  to  common  law  no  particular  ceremony 
is  necessary  for  marriage.  In  most  states,  however,  certain 
formalities  are  prescribed ;  for  example,  a  license  must  be 
obtained,  the  ceremony  must  be  performed  by  a  justice  of  the 
peace  or  by  someone  authorized  to  perform  marriages,  and  the 
marriage  must  be  recorded.  In  North  Carolina,  however,  not 
only  must  these  formalities  be  complied  with  but  the  contract- 
ing parties  must  present  medical  certificates  showing  that  they 
are  in  proper  health,  both  physical  and  mental.  In  spite  of 
these  statutes  many  states  regard  common-law  marriages  as 
valid ;  that  is,  a  mere  agreement  between  a  man  and  woman  to 
live  as  husband  and  wife,  followed  by  actual  living  together 
as  husband  and  wife. 

No  marriage  is  considered  valid  unless  the  parties  are  capable  Limitations 

rx^,  1-     •        •  n  on  marriage 

of  entermg  such  a  status.  These  limitations  are  generally  pre- 
scribed by  statute  and  vary  in  different  states.  In  general,  the 
parties  must  be  single — that  is,  not  possessing  another  husband 
or  wife;  they  must  be  of  the  age  prescribed  by  the  state 
statute;  they  must  not  be  related  within  the  degrees  of  rela- 
tionship forbidden  by  the  state;  they  must  have  sufficient 
mental  capacity. 

The  contract  of  marriage  differs  from  other  contracts.    All  Termination 

,  •  11  .1  i      XT    ,  of  marriage 

Other  contracts  may  be  terminated  by  mutual  consent.  Not  so 
marriage.  The  contract  of  marriage  sets  up  a  status  which  can 
only  be  terminated  by  the  death  of  the  husband  or  wife  or  by 
judicial  separation.  In  all  the  states  except  North  Carolina 
termination  of  marriage  is  allowed  by  judicial  procedure — 


2  62      STATE  AND  MUNICIPAL  GOVERNMENT 

divorce.  The  causes  for  divorce  vary  in  different  states.  In 
New  York,  for  example,  absolute  divorce  is  granted  only  on  the 
ground  of  adultery.  In  other  states  cruelty,  desertion,  drunk- 
enness, and  even  incompatibility  are  recognized  as  causes  for 
divorce.  Different  states  require  varying  periods  of  residence 
within  the  state  in  order  to  obtain  a  divorce  under  the  laws 
of  the  state.  These  periods  differ  from  six  months  in  Idaho  and 
Nevada  to  from  three  to  five  years  in  Massachusetts.  As  a 
result  of  these  variations  in  the  state  laws  it  is  possible  for  one 
party  to  obtain  a  residence  within  a  state  having  lax  divorce 
laws  and  divorce  the  other  party.  Such  divorces,  however,  are 
not  always  recognized  within  the  state  where  the  parties 
actually  live. 
Common-  According  to  the  English  common  law  the  wife  has  no  sepa- 

crf^usba^nd°  ^^^e  existence  apart  from  the  husband.  She  can  have  no 
and  wife,  separate  property  and  is  in  every  way  subject  to  the  control 
and  children  of  her  husband.  In  turn,  the  husband  is  liable  for  all  her  debts 
and  torts.  This  common-law  practice  has  been  greatly  miti- 
gated, both  by  English  statutes  and  by  the  laws  of  the  various 
states.  Today  it  may  be  said  that  in  certain  states  the  status 
of  a  married  woman  is  more  privileged  than  that  of  her  hus- 
band. She  may  possess  property,  both  real  and  personal,  apart 
from  her  husband,  who,  however,  remains  liable  for  her  debts 
and  torts.  Either  the  husband  or  wife  may  sue  a  third  party 
for  a  tort  which  deprives  one  of  them  of  the  society  or  services 
of  the  other.  In  like  manner  the  relationship  between  the 
parents  and  children  originally  set  up  by  English  common  law 
has  been  greatly  mitigated.  Parents  still  may  control  the  lives 
of  their  children,  but  subject  to  most  strict  regulation  by  the 
states.  Parents  or  guardians,  moreover,  may  gain  damages 
from  other  parties  for  torts  which  their  children  have  suffered, 

7.    Partnerships  and  Corporations 

Partnerships  A  partnership  is  a  contract  between  two  or  more  persons  to 
do  business  as  individuals  on  joint,  undivided  account.  In  a 
partnership  every  member  of  the  firm,  unless  restricted  by  some 
agreement,  is  entitled  to  full  management  and  control  of  the 


THE  LEGAL  SYSTEM  OF  THE  STATES         263 

business  and  property  of  the  partnership.  One  partner  can  do 
nothing  without  the  agreement  of  the  other  partners,  and  one 
partner  may  prevent  any  action  by  the  other  partner  or  part- 
ners. In  case  the  partners  fail  to  agree  the  only  remedy 
is  a  dissolution  of  the  partnership.  All  partners  are  liable 
to  the  full  extent  of  their  property  for  the  torts  and  debts 
of  the  partnership,  and  any  person,  although  not  formally 
admitted  to  the  partnership,  whose  relations  to  it  may  give 
other  persons  reason  to  believe  that  he  is  a  partner  may  also 
be  held  liable. 

In  most  states  the  law  permits  partnerships  to  be  established  Limited 
by  which  the  liability  of  the  members  is  limited  to  some  specific  ^^^  ^^^^  '^ 
amount.    In  such  cases  the  fact  must  be  notified  to  the  public 
by  publication  in  the  papers  and  the  use  of  the  word  "limited" 
with  the  name  of  the  firm  in  all  advertising  matter  and  in 
correspondence. 

Partnerships  generally  exist  for  pecuniary  gain.  Voluntary  voluntary 
associations  are  unincorporated  groups  of  people  who  are  joined  ^^5°"**!°''^ 
together  not  for  the  purpose  of  gain  but  for  the  promotion 
of  some  specific  purpose.  Common  examples  of  this  type  of 
association  are  clubs,  churches,  and  literary  and  charitable 
organizations.  All  members  of  the  association  who  sign  the 
constitution  or  by-laws  are  held  liable  for  the  torts  and  debts 
of  the  association  incurred  by  the  officers  designated  by  the 
constitution  to  incur  these  debts.  Where  no  such  designa- 
tion is  made,  all  members  of  the  association  who  favor  the 
incurring  of  a  liability  or  the  performance  of  an  act  are  held 
responsible  for  it. 

A   joint-stock   company   is    an    unincorporated    association  joint-stock 
organized  for  business  purposes.    It  differs  from  a  partnership  *^°™P^°y 
in  that  the  stock  is  transferable  at  the  will  of  the  members. 
In  a  partnership  no  new  partner  can  be  admitted  without  the 
consent  of  the  other  partners.    Members  of  joint-stock  com- 
panies have  the  same  liabilities  as  members  of  partnerships. 

A  corporation  is  a  body  of  natural  persons  established  by  corpora- 
law,  usually  for  some  specific  purpose,  and  continued  by  a 
succession  of  members.    A  corporation  differs  from  a  partner- 
ship, a  voluntary  association,  and  a  joint-stock  company  in  that 


2  64     STATE  AND  MUNICIPAL  GOVERNMENT 

it  possesses  a  distinct  legal  entity  apart  from  the  entity  of  its 
members.  That  is,  a  corporation  is  a  legal  personality.  It 
may  sue  and  be  sued,  contract  debts,  commit  torts,  incur 
liabilities,  and  suffer  wrongs  like  any  other  legal  person  and 
apart  from  its  members.  Being  an  artificial  person,  only 
bodies  having  some  degree  of  sovereignty  may  create  cor- 
porations;  that  is,  only  the  federal  government  or  the  gov- 
ernments of  the  states.  Originally  every  corporation  was 
created  by  a  special  legislative  act.  Many  corporations  are 
still  so  created.  The  more  common  practice,  however,  is 
for  the  legislature  to  pass  certain  general  laws  allowing  per- 
sons under  specific  conditions  and  for  specific  purposes  to 
form  themselves  into  a  corporation.  When  these  require- 
ments have  been  complied  with  a  charter  is  issued  by  the 
proper  state  authority,  and  the  corporation  becomes  a  legal 
entity.  According  to  Chief  Justice  JMarshalFs  decision  in  the 
Dartmouth  College  case,  a  charter  of  incorporation  is  a  contract, 
and  thus  no  state  may  pass  a  law  "violating  the  obligation  of 
this  contract";  that  is,  changing  it  by  amendment  or  resuming 
it  in  any  way.  To  avoid  the  complications  thus  arising,  prac- 
tically all  the  constitutions  of  the  states  declare  that  no  charter 
shall  be  issued  to  any  corporation  unless  the  right  is  specifically 
reserved  to  the  legislature  to  amend,  revise,  or  resume  such  a 
charter.  Membership  in  a  corporation  is  generally  obtained  by 
the  purchase  of  one  or  more  shares  of  the  corporation.  The 
shares  are  known  as  stock  in  the  corporation,  and  the  holders 
as  stockholders.  A  stockholder  of  a  corporation  has  the  right 
of  ownership  of  the  share  or  shares  in  the  company's  property 
to  which  his  certificate  entitles  him.  He  furthermore  has  the 
right  to  cast  a  vote  for  each  share  he  owns  in  electing  the 
officers  or  management  of  the  corporation  or  in  the  determina- 
tion of  such  affairs  as  are  submitted  to  the  stockholders.  Gen- 
erally the  stockholder  is  liable  only  for  the  face  value  of  his 
stock  certificate;  that  is,  he  has  no  further  liability  beyond  the 
amount  of  money  he  has  paid  into  the  corporation.  In  some 
cases,  however,  particularly  in  banks,  stockholders  are  liable 
for  twice  the  face  value  of  their  certificates.  This  is  called 
double  liability.    The  affairs  of  a  corporation  are  generally 


THE  LEGAL  SYSTEM  OF  THE  STATES        265 

managed  by  a  board  of  directors,  chosen  by  the  stockholders, 
or  a  board  of  trustees.  This  board,  in  turn,  elects  certain  execu- 
tive officers,  who  carry  out  the  policies  of  the  corporation  under 
the  supervision  of  the  board  of  directors.  Corporations  may 
exist  either  in  perpetuity  (that  is,  without  time  limitation)  or 
they  may  be  limited  by  statute. 

8.  Remedies 

As  has  been  seen,  law  concerns  itself  with  the  creation  and  substantive 
definition  of  legal  rights  and  with  the  provision  for  the  enforce-  tive law*^ 
ment  of  these  rights  and  the  redress  of  wrongs.  Substantive 
law  is  concerned  with  the  determination  of  legal  rights,  adjec- 
tive law  with  the  enforcement  of  remedies  when  the  rights  of 
substantive  law  are  violated.  These  remedies  may  be  either 
extra-legal  or  legal  remedies. 

Extra-legal  remedies  are  of  three  sorts :  ( i )  Those  applied  Extra-iegai 
by  the  sole  act  of  the  injured  person.  This  class  includes  '^^^^  ^^^ 
self-defense,  which  has  already  been  discussed,  and  which 
means  that  the  injured  party  whose  right  is  threatened  may 
repel  the  anticipated  wrong.  He  may  defend  his  person,  or  his 
wife  and  children,  or  even  his  property.  In  the  defense  of  his 
life  he  may  use  any  amount  of  force,  even  to  the  extent  of 
taking  the  life  of  another  person,  but  in  the  defense  of  property 
human  life  may  not  be  taken.  (2)  Another  extra-legal  remedy 
is  that  of  recaption,  which  means  the  retaking  of  persons  and 
personal  property  by  those  who  have  a  legal  right  to  do  it.  A 
similar  right  with  regard  to  real  property  is  that  of  entry,  by 
which  a  person  wrongfully  excluded  from  his  property  may 
enter  and  take  possession  of  it.  Neither  recaption  nor  entry 
may  be  used  in  such  a  way  as  to  disturb  the  public  peace. 
Another  extra-legal  remedy  is  the  abatement  of  a  nuisance, 
which  has  already  been  described.  (3)  The  last  extra-legal 
remedy  is  distress,  by  which  the  injured  person  takes  a  per- 
sonal chattel  belonging  to  the  wrongdoer.  In  this  country  it 
is  generally  confined  to  two  cases — that  of  a  landlord  taking 
property  for  unpaid  rent,  and  the  taking  of  cattle  which  have 
strayed  and  committed  damage  upon  the  land  of  another. 


2  66      STATE  AND  MUNICIPAL  GOVERNMENT 


Legal 
remedies 


Ordinary 
common- 
law 
remedies 


Extraordi- 
nary com- 
mon-law 
remedies 
Mandamus 

Quo  warranto 


Habeas 
Corpus 


Prohibition 


Legal  remedies  may  be  divided  into  penal  and  civil  remedies. 
Penal  remedies  are  those  applied  by  the  state  for  the  punish- 
ment of  a  crime,  and  usually  take  the  form  of  fines,  imprison- 
ment, or  capital  punishment.  Civil  remedies  are  of  two  sorts : 
those  granted  by  the  courts  of  common  law  and  those  granted 
by  procedure  in  equity. 

Common-law  remedies  in  general  are  of  two  kinds — restora- 
tion and  damages.  Restoration  is  the  means  by  which  a  piece 
of  property  or  a  right  is  restored  to  the  owner  in  pursuance 
with  a  judgment  of  a  court  of  law.  In  many  instances  the 
property  or  right  cannot  be  restored  in  the  form  it  was  taken. 
Therefore  the  court  may  award  a  monetary  compensation. 
This  compensation  is  known  as  damages.  Damages  may  be 
nominal;  that  is,  a  small  sum,  designed  to  be  a  public  recog- 
nition of  the  right  claimed.  These  are  awarded  when  there  is 
no  appreciable  loss.  Compensatory  damages  are  designed  to 
compensate  or  to  make  good  the  loss  or  wrong  suffered.  These 
are  awarded  where  an  appreciable  loss  has  been  suffered.  It 
is  extremely  difficult  to  estimate  exactly  the  pecuniary  loss  in 
many  instances,  and  a  great  mass  of  law  exists  upon  the  meas- 
ure of  such  damages.  Exemplary  or  punitive  damages  are 
money  payments  which  are  awarded  as  punishment  for  the 
wrongdoer  where  malice  is  evident. 

There  are  four  classes  of  legal  writs  issued  by  the  courts.  The 
writ  of  mandamus  is  an  order  issued  by  a  court  commanding  an 
officer,  a  corporation,  or  a  court  to  perform  some  legal,  minis- 
terial duty,  or  a  duty  not  involving  discretion.  An  information 
in  the  nature  of  a  quo  warranto  is  a  writ  issued  by  the  court  in 
order  to  compel  a  corporation  or  an  officer  to  show  by  what 
authority  certain  functions  are  performed.  It  is  used  to  test 
the  validity  of  incorporations  and  of  elections,  respectively.  The 
writ  of  habeas  corpus  may  be  issued  by  a  common-law  court, 
directing  that  a  person  in  confinement  be  brought  before  the 
court  so  that  the  legality  of  his  commitment  may  be  passed 
upon.  A  writ  of  prohibition  may  be  issued  by  a  superior  court 
to  an  inferior  court  prohibiting  the  inferior  court  from  proceed- 
ing. This  is  generally  issued  to  protect  the  jurisdiction  of 
the  court. 


THE  LEGAL  SYSTEM  OF  THE  STATES         267 

As  has  been  shown,  the  purpose  of  equity  is  to  accomphsh  Equitable 
justice  by  supplementing  the  inadequate  rights  recognized  or 
remedies  allowed  by  common-law  courts.  The  ordinary  means  injimction 
by  which  this  is  done  is  through  the  writ  of  injunction.  A  writ 
of  injunction  is  an  order  issuing  from  a  court  having  equity 
jurisdiction  and  commanding  a  person  to  do  some  act  or  to 
refrain  from  doing  some  act.  In  the  first  instance  it  is  known 
as  a  mandatory  injunction;  in  the  second,  as  a  prohibitory 
injunction.  It  should  be  remembered  that  equity  may  not 
be  resorted  to  unless  it  can  be  shown  that  legal  remedies  are 
inadequate. 


CHAPTER  XIV 
THE  JUDICIAL  SYSTEM  OF  THE  STATES 

Importance        State  courts  administer  the  law  of  the  state.    By  that  is 

and  func-  i.       i         i 

tions  of        meant   the   legal   system   described   in   the   previous   chapter. 

state  courts  jj^jg  includes  both  equity  and  law,  both  civil  and  criminal  law, 
both  common  and  statute  law.    The  state  courts  are  thus  the 
most  important  legal  agencies  in   the  life  of  a  citizen.    His 
entire  domestic  relations  are  determined  by  state  law  and  ad- 
ministered by  the  state  courts.    The  right  and  use  of  his  prop- 
erty are  determined  by  state  law  and  protected  by  state  courts. 
Only  when  a  state  attempts  to  deprive  a  citizen  of  his  property 
without  due  process  of  law,  when  a  person  violates  a  federal 
statute,  or  when  for  some  reason — such  as  diverse  citizenship 
— one  of  the  parties  has  a  right  to  ask  it,  do  the  federal  courts 
intervene.    The  state  courts  administer  the  police  laws  of  the 
state.  The  state  courts  are  the  ones  to  which  a  citizen  ordinarily 
appeals  when  he  feels  that  he  is  wronged  in  any  right.  The  state 
courts  enforce  his  business  claims  in  the  commercial  relations 
which  he  maintains.    It  is  true  that  Congress  through  the  inter- 
state commerce  clause  of  the  Federal  Constitution  is  passing 
more  and  more  laws  for  the  regulation  of  interstate  and  foreign 
commerce,  yet  generally  a  man  appeals  to  his  state  courts  for 
the  enforcement  of  his  personal  commercial  rights  and  obliga- 
tions.   The  state  courts  administer  all  questions  of  inheritance 
and  estates.  Finally,  the  criminal  law,  under  which  every  citizen 
lives,  is  administered  in  a  large  part  by  the  state  courts.  In  gen- 
eral, it  may  be  said  that  a  citizen  appears  before  the  federal 
courts  only  when  he  seeks  the  protection  of  or  is  found  violating 
a  federal  law,  such  as  the  act  creating  the  Interstate  Commerce 
Commission,    the    Federal    Trade    Commission   or    regulations 
thereunder,  the  Pure  Food  and  Drugs  Act,  or  the  Volstead  Act. 
In  addition,  when  a  citizen  feels  that  the  law  of  the  state  or 

268 


THE  JUDICIAL  SYSTEM  OF  THE  STATES      269 

the  action  of  the  state  court  has  deprived  him  of  some  right  of 
his  Hberty,  life,  or  property,  without  due  process  of  law,  or 
when  the  obligation  of  some  contract  has  been  violated,  he 
may  appeal  from  the  highest  court  of  his  state  to  the  federal 
Supreme  Court.  Perhaps  most  important  of  all,  should  a 
citizen  of  one  state  be  involved  in  a  controversy  with  a  citizen 
of  another  state  the  case  may  be  tried  by  the  federal  courts. 
Thus,  since  the  greater  part  of  the  life  of  a  citizen  is  determined 
by  state  law,  the  state  courts  are  the  ones  with  which  he  is 
most  concerned. 

Classification  of  State  Courts 

The  structure  of  the  courts  in  each  state  is  entirely  under  The  judicial 
the  control  of  the  citizens  of  the  state.    The  Federal  Constitu-  tC  states    . 
tion  makes  no  provision  for  any  state  judicial  system.    A  sys-  ^y^st™t°^^ 
tem  of  courts,  however,  is  assumed,  and  this  assumption  is  but  constitu- 

'  '  '  tions  and 

an  example  of  the  federal  structure  of  the  national  government,  statutes: 
The  Constitution  and  the  acts  of  Congress  recognize  the  exist- 
ence of  state  courts  and  provide  for  appeals  from  them,  but 
each  state  is  left  to  determine  its  own  system.  Thus,  there  is 
little  uniformity  to  be  found  in  the  judicial  systems  of  the 
various  states.  The  courts  in  the  different  states  bear  different 
names,  and  frequently  courts  of  the  same  name  have  different 
jurisdictions.  Nevertheless,  all  the  states  have,  under  various 
names,  a  system  of  at  least  four  courts.^ 

In  every  state  justices  of  the  peace  have  jurisdiction  over  (o  justices 
petty  offenses  both  civil  and  criminal.  In  every  instance  the  °  ^  ^^^^ 
jurisdiction  of  these  justices  is  strictly  limited — in  civil  affairs 
to  cases  involving  only  a  small  amount  of  property,  rarely  more 
than  fifty  or  one  hundred  dollars ;  in  criminal  cases  to  the  dis- 
position of  petty  misdemeanors,  punishable  by  fines  and,  per- 
haps, by  short  terms  of  imprisonment.  Justices  of  the  peace  hear 
cases  without  the  assistance  of  a  jury;  hence  appeal  may  be 
taken  to  a  higher  court  with  a  jury.  These  justices  of  the  peace, 
moreover,  are  the  officials  before  whom  persons  charged  with 
serious  crimes  and  felonies  are  brought.    Although  the  justice 

iSee  Simeon  E.  Baldwin,  The  American  Judiciary,  chap.  viii. 


2  70      STATE  AND  MUNICIPAL  GOVERNMENT 


[Municipal 
courts] 


(2)  Inter- 
mediate 
courts 


has  no  right  to  make  final  disposition  of  the  case,  he  may  dis- 
charge or  commit  the  accused  to  prison  to  await  the  action  of 
a  higher  court.  In  cases  not  involving  murder  he  may  release 
the  accused  on  bail.  Many  writers  have  regarded  these  justices 
of  the  peace  as  the  weakest  part  of  the  judicial  system.  Fre- 
quently they  are  ignorant  of  the  law.  Occasionally  they  have 
been  found  to  be  guilty  of  favoritism  and  graft.  They  have  one 
advantage,  however,  in  the  fact  that  although  they  may  be 
ignorant  of  the  law,  they  generally  know  the  suitors  before 
them.  Although  they  may  fail  at  times  to  administer  the  law, 
they  generally  administer  justice. 

Special  courts  are  established  in  towns  and  cities.  These 
courts  are  presided  over  by  a  justice  of  the  peace  or  a  judge  and 
provided  with  a  clerk.  Their  jurisdiction  is  confined  to  petty 
cases  in  civil  affairs  and  to  the  punishment  of  misdemeanors 
arising  from  the  violation  not  simply  of  the  state  statutes  but 
of  the  municipal  ordinances.  These  courts  are  of  greatest  im- 
portance, not  because  of  the  amount  involved  in  the  cases  or 
the  seriousness  of  the  prosecutions  brought  before  them  but  be- 
cause they  are  the  courts  with  which  the  poor,  the  ignorant,  and 
the  unfortunate  first  come  in  contact.  It  is  from  these  courts 
that  the  immigrants  and  foreigners  get  their  first  and  perhaps 
sole  idea  of  justice.  A  wise  and  sympathetic  justice  of  the  peace 
or  municipal  judge  may  frequently,  by  his  disposition  of  the 
case  before  him,  accomplish  more  than  the  penal  or  reformatory 
agencies  of  the  state  could  possibly  do. 

In  every  state  there  is  a  court  above  the  justice  of  the  peace 
to  which  appeals  may  be  carried  and  which  has  generally  un- 
limited jurisdiction  both  in  criminal  and  civil  affairs.  This  court 
is  variously  named  the  county  court,  the  district  court,  the  cir- 
cuit court,  or  the  superior  court.  By  whatever  name  the  court 
is  called,  its  characteristics  are  everywhere  the  same.  It  is 
presided  over  by  a  judge,  provided  with  a  clerk,  and  has  a 
sheriff  and  his  subordinates  to  enforce  its  decree.  It  is  the 
court  before  which  the  grand  jury  is  impaneled,  and  it  is  the 
court  to  which  the  grand  jury  presents  its  indictments.  Deter- 
mination of  matters  of  fact  are  made  not  by  the  judge  but  by 
the  petit   jury.    This  court   generally  has,   by   means  of  this 


THE  JUDICIAL  SYSTEM  OF  THE  STATES      271 

jury,  the  final  determination  of  all  questions  of  fact.  In  some 
states  this  court  is  limited  in  its  jurisdiction  over  the  most 
serious  crimes,  which  are  tried  before  a  special  court. 

Originally  in  the  United  States,  particularly  in  the  South,  (county 
the  justices  of  the  quarter  sessions  acted  as  a  county  court.  '^'^^  *■' 
This  court  had  both  judicial  and  administrative  functions.  It 
not  only  heard  cases  in  law  but  was  charged  with  the  super- 
vision of  county  affairs,  particularly  with  the  maintenance  of 
roads  and  bridges,  the  supervision  of  the  jail,  and  the  care  of 
the  county  poor.  In  most  states  the  administrative  functions 
of  this  court  have  been  vested  in  county  supervisors  or  adminis- 
trative boards.^  In  Kentucky,  Tennessee,  and  Arkansas,  how- 
ever, the  county-court  justices  continue  to  exercise  both  judicial 
and  administrative  power.  In  Missouri  and  West  Virginia  the 
county  courts  have  no  judicial  power,  and  in  Vermont  the  ad- 
ministrative duties  of  the  county  commissioners  are  performed 
by  assistant  judges  of  the  county  court. 

All  states  have  special  courts  dealing  with  the  proving  of  (3)  Probate 

courts 

wills  and  the  administration  of  estates  and,  in  some  states,  with 
certain  matrimonial  questions.  In  general  there  is  a  probate 
court  for  every  county  in  the  state,  and  in  the  course  of  a 
generation  the  whole  personal  and  real  property  of  all  the  citi- 
zens must  pass  through  this  court.  The  value  of  the  estate 
must  be  declared  and  its  disposition  made  according  either 
to  common  or  statutory  law  or  to  the  will  and  testament  of 
the  deceased. 

Every  state  has  an  appellate  court,  sometimes  more  than  one.  (4)  Appei- 
In  every  state,  however,  there  is  a  court  which  has  the  final 
jurisdiction  on  questions  of  law.  These  courts  are  variously 
designated  as  supreme  courts  or  courts  of  appeal.  In  some 
states  there  are  found  both  supreme  courts  and  courts  of 
appeal,  which  gives  to  the  citizens  a  double  appeal.  The  courts 
of  final  adjudication  are  not  engaged  in  the  determination  of 
facts,  but  in  the  examination  of  whether  the  law  and  the  rights 
of  the  litigants  as  determined  by  the  constitution  and  the  law 
have  been  properly  guarded.  Questions  of  procedure,  of  evi- 
dence, and  of  interpretation  are  presented  before  this  court.    It 

^See  pages  325-326. 


late  courts 


2  72      STATE  AND  MUNICIPAL  GOVERNMENT 


Special 
courts 


The  juve- 
nile court 


has  little  original  jurisdiction,  but  acts  upon  appeals  resulting 
from  writs  of  error,  of  prohibition,  and  the  like.  This  court  is 
the  final  interpreter  of  state  statutes  and  state  constitutions  un- 
less they  are  held  to  conflict  with  the  Federal  Constitution  or  an 
act  of  Congress.  Until  1916^  there  was  no  way  of  questioning 
the  decision  of  these  courts  if  a  state  law  was  declared  un- 
constitutional by  reason  of  its  conflict  with  a  federal  statute 
or  the  Federal  Constitution.  This  resulted  in  divergent  prac- 
tices in  the  different  states.  Occasionally  a  law  would  be  held 
constitutional  which  the  appellate  courts  of  another  state  would 
declare  was  in  direct  violation  to  the  Federal  Constitution. 
In  19 1 6  this  was  remedied  by  allowing  an  appeal  from  the 
appellate  court  to  the  United  States  Supreme  Court  in  cases 
where  the  state  act  had  been  declared  to  be  in  conflict  with 
the  federal  law  or  Constitution. 

There  are  numerous  special  courts  established  in  different 
states.  Some  of  the  more  interesting  of  these  are  the  juvenile 
court,  the  court  of  domestic  relations,  the  land  court,  and 
the  small-claims  courts.- 

The  idea  of  a  juvenile  court  originated  in  South  Australia 
in  1890.^  At  about  the  same  time  New  York  and  jMassachu- 
setts  passed  certain  statutes  providing  for  the  separate  hearing 
of  children's  cases.  In  1899  the  juvenile  court  of  Cook  County, 
Illinois,  was  established  on  the  basis  of  a  bill  drawn  by  Judge 
Harvey  H.  Hurd  from  the  original  plans  of  Dr.  Hastings  H. 
Hart.  In  1901  the  Denver  court  was  established  and  became 
famous  through  the  administration  of  Judge  Ben  B.  Lindsey. 
There  are  at  present  juvenile  courts  in  more  than  half  of 
the  states. 

'See  pases  275-276. 

2 Some  of  these  courts  are  well  described  by  R.  H.  Smith,  "Justice 
and  the  Poor,"  Bulletin  No.  ij  of  the  Carnegie  Foundation  for  the 
Advancement  of  Teaching;. 

*See  H.  H.  Hart,  Preventive  Treatment  of  Neglected  Ciiildren,  also 
Juvenile  Court  Laws  in  the  United  States  (summarized).  Judge  Ben  B. 
Lindsey 's  "My  Lesson  from  the  Juvenile  Court,"  in  the  Survey,  Feb- 
ruary s,  iQio,  pp.  652-656,  is  devoted  entirely  to  this  question.  See  the 
Proceedings  of  the  National  Conference  of  Charities  and  Corrections, 
the  American  Year  Book  for  1910,  also  Cyclopedia  of  American  Govern- 
ment, Vol.  I,  p.  500. 


THE  JUDICIAL  SYSTEM  OF  THE  STATES      273 
The  purpose  of  the  juvenile  court  is  to  care  for  (i)  neglected  Purpose  and 

,  .,  ,  ,  ,     r  7  1  r  •     •  principles 

children  who  are  before  the  court  because  01  some  omission  on  of  the  ju- 
the  part  of  their  parents,  and  (2)  delinquent  children— that  ^emie court 
is,  those  who  have  offended  against  the  law.  In  general  the 
jurisdiction  of  this  court  is  confined  to  children  of  sixteen  years 
of  age  or  under,  although  in  some  states  the  court  has  jurisdic- 
tion of  children  as  old  as  eighteen.  The  creation  of  the  court 
was  the  acknowledgment  of  the  duty  of  the  state  to  protect  and 
aid  the  child  and  direct  him  along  the  lines  of  proper  develop- 
ment. With  this  in  mind  emphasis  is  laid  upon  the  correction 
of  conditions  responsible  for  the  child's  wrongdoing,  rather 
than  upon  the  act  of  the  child  itself.  The  legal  principles  from 
which  the  court  derives  its  jurisdiction  are  found  in  the  deci- 
sions of  the  English  chancellors  in  administering  equity.  From 
time  immemorial  it  has  been  held  within  the  power  of  the  state 
to  take  from  the  supervision  of  the  parent  a  neglected  child,  to 
appoint  guardians  for  it,  and  to  make  such  guardians  respon- 
sible to  the  court.  The  modern  laws  with  regard  to  juvenile 
courts  go  one  step  further  and  give  the  courts  jurisdiction  not 
simply  of  neglected  or  dependent  children  but  of  delinquent  or 
offending  children.  This  is  done  simply  by  raising  the  age 
below  which  a  child  shall  not  be  treated  as  a  criminal.  Accord- 
ing to  this  principle  the  juvenile  offender  is  not  subject  to  a 
penalty  for  violation  of  the  law,  but  may  be  compelled  to 
make  compensation,  to  report  to  the  court,  to  be  put  on  pro- 
bation and  under  the  supervision  of  some  officer  or  guardian. 
As  has  been  said,  the  theory  aims  to  remedy  conditions  which 
produce  the  neglected  or  delinquent  child  rather  than  to  punish 
him  as  an  offender.  Strictly,  however,  there'should  be  no  appeal 
from  the  equitable  ruling  of  the  judge  to  a  higher  court  of  law. 
Practically,  however,  this  is  advisable.  It  not  only  gives  the 
parent,  from  whom  the  child  may  be  taken,  a  right  to  ap- 
peal, but  it  checks  the  danger  of  arbitrariness  on  the  part  of 
the  judge  and  probably  leads  to  his  greater  and  more  sym- 
pathetic consideration  in  cases  where  the  custody  of  the  child 
is  disturbed. 

In  all  juvenile  courts,  and  in  those  courts  which  provide  for  Procedure 
the  separate  hearing  of  children's  cases,  a  distinction  is  made 


2  74      STATE  AND  MUNICIPAL  GOVERNMENT 


Domestic- 
relations 
court 


Small- 
claims 
courts 


between  the  ordinary  criminal  court  and  the  children's  court. 
In  the  best  type  of  juvenile  courts  the  ordinary  paraphernalia 
of  the  courtroom  is  dispensed  with.  No  uniformed  officers  are 
in  attendance.  The  child  meets  the  judge  at  a  table  and  is 
questioned  by  him.  Every  opportunity  is  given  the  child  to 
speak  freely  and  without  restraint,  and,  as  Judge  Lindsey  has 
recently  shown,  the  confidence  of  the  child  should  not  be 
abused  by  taking  his  testimony  as  a  basis  for  criminal  pro- 
ceedings. To  be  effective  a  juvenile  court  must  have  a  suf- 
ficient number  of  probation  officers  and  visitors  who  may 
watch  over  the  child  and  see  that  the  directions  or  plans  of 
the  court  are  carried  out.  In  extreme  instances,  for  example 
where  the  parents  have  proved  to  be  improper  custodians  of 
the  child,  the  court  may  appoint  a  temporary  guardian  who 
shall  act  in  loco  parentis. 

In  an  increasing  number  of  cities  special  courts  known  as 
courts  of  domestic  relations  have  been  established.^  The  object 
of  these  special  courts  is  to  give  adequate  and  easy  remedy  in 
cases  involving  domestic  relations.  The  use  of  civil  remedy  for 
the  enforcement  of  separation  allowances  and  the  payment  of 
alimony  has  proved  to  be  slow  and  expensive.  Consequently 
there  is  an  increasing  tendency  to  apply  criminal  remedies. 
The  deserted  wife  may  apply  for  a  warrant  for  her  husband 
and  sue  him  criminally  for  nonsupport.  If  he  is  found  guilty 
he  is  sentenced.  Not  infrequently  the  husband  is  put  on  pro- 
bation and  obliged  to  pay  each  week  a  portion  of  his  wages  to 
the  probation  officer  for  the  benefit  of  his  wife.  The  domestic- 
relations  courts  are  also  making  more  and  more  use  of  the 
principle  of  conciliation,  attempting  to  settle  the  matrimonial 
disputes  before  separation  occurs. 

Some  of  the  states-  have  established  what  are  known  as 
small-claims  courts.  These  are  generally  branches  of  the 
municipal  courts  in  the  more  important  cities  and  provide  a 
quick  and  easy  method  for  the  collection  of  small  claims.  Their 
jurisdiction  is  generally   limited   to   small   sums   not   usually 

iSce  R.  H.  Smith,  Justice  and  the  Poor,  pp.  73-81. 
-Illinois,  Kansas,  Ohio,  and  OrcKon  ;  see  R.  H.  Smith,  Justice  and 
the  Poor,  pp.  41-60. 


THE  JUDICIAL  SYSTEM  OF  THE  STATES      275 

exceeding  twenty-five  dollars.  The  reason  for  the  establishment 
of  these  courts  was  a  realization  that  in  many  cases  the  poor 
were  denied  legal  means  to  collect  their  claims  because  the 
expense  of  court  procedure  often  exceeded  the  amount  of  the 
claim.  In  the  small-claims  court  procedure  is  cheap  and  simple 
and  no  lawyers  are  employed. 

In  some  states  a  system  of  land  registration  has  been  adopted  Land  courts 
and  a  special  land  court  has  been  established  for  the  determina- 
tion of  questions  in  connection  with  the  administration  of  this 
law.  This  court  is  highly  technical  and  hears  but  one  type  of 
case.  It  sits  without  a  jury,  and  appeal  generally  lies  to  the 
intermediate  courts  (district,  circuit,  superior)  on  questions  of 
fact  and  to  the  appellate  court  on  questions  of  law. 

In  some  of  the  large  cities  a  special  session  of  the  police  Nightcourts 
court  is  held  during  the  night.    This  is  for  the  purpose  of 
disposing  of  petty  offenses  and  of  persons  who  are  arrested 
without  cause.    It  struck  a  blow  at  professional  bondsmen  and 
prevented   the  unjust   retention   of   innocent   persons   in   the 
station  house  overnight.    Elsewhere  a  special  court  is  estab-  women's 
lished  for  the  hearing  and  determination  of  offenses  which  ^°^^  ^ 
women  may  have  committed. 

It  should  be  reiterated  that  the  courts  of  the  states  are  Relation  of 

the   St3.t6 

not  inferior  to  the  federal  courts.  The  state  courts  administer  courts  to 
state  law ;  the  federal  courts,  federal  law.  In  administering  courts*^^"^^^ 
the  law  of  the  state  the  judgment  of  the  state  court  is  final 
unless  it  can  be  shown  that  the  law  under  which  the  state  court 
has  acted,  or  its  method  of  procedure,  was  contrary  to  some 
provision  of  federal  law  or  the  Federal  Constitution.  In  such 
a  case  a  system  of  appeal  is  provided.  The  process  is  rather 
technical,  but  briefly  is  as  follows:  The  judgment  of  a  lower 
state  court  can  in  no  case  be  carried  directly  to  the  United 
States  courts.  The  United  States  court  will  not  act  until  the 
highest  court  in  the  state  having  jurisdiction  has  passed  upon  the 
case.  Until  19 16  an  appeal  could  be  taken  from  the  highest  court 
of  the  state  only  in  cases  where  a  question  had  been  raised  in- 
volving a  federal  right  based  upon  the  Constitution  or  treaty 
and  the  decision  of  the  state  court  was  against  such  federal 
right ;  or  where  a  state  law  had  been  questioned  on  the  ground 


Amendment 


276      STATE  AND  IMUXICIPAL  GOVERNMENT 

of  its  being  in  conflict  with  the  Federal  Constitution  or  an  act  of 
Congress  and  the  decision  had  been  in  favor  of  the  state  law. 
This  made  it  possible  for  the  judiciary  of  the  states  to  prevent 
appeal  to  the  federal  court  by  declaring  a  state  law  unconstitu- 
tional because  of  conflict  with  the  federal  law.  As  a  result,  in 
some  states  certain  state  laws  were  declared  unconstitutional 
by  the  state  courts,  while  in  other  states  the  constitutionality  of 
similar  laws  was  upheld  both  by  the  state  courts  and  the  United 
States  Supreme  Court.  To  remedy  this  Congress  amended  the 
Judiciary  Act  in  191 6  and  allowed  appeals  to  be  taken  to  the 
United  States  Supreme  Court  even  if  the  state  court  had  de- 
clared the  state  act  unconstitutional.  It  is  hoped  that  this  will 
remedy  the  divergences  which  formerly  existed  in  the  applica- 
tion of  the  Federal  Constitution  and  of  acts  of  Congress  to 
state  legislation. 
The  effect  The  Fourteenth  Amendment  to  the  Federal  Constitution 
Fourteenth  greatly  enhanced  the  appellate  power  of  the  Supreme  Court 
of  the  United  States.  Since  no  state  may  deprive  its  citizens 
of  life,  liberty,  or  property  without  due  process  of  law,  and 
since  every  state  must  grant  equal  protection  of  the  laws  to 
all  persons  within  its  jurisdiction,  the  Supreme  Court  of  the 
United  States  is  frequently  called  to  sit  in  judgment  upon  state 
legislation.  It  is  a  popular  misapprehension  that  the  federal 
courts,  acting  under  this  power,  very  frequently  reverse  the 
decisions  of  the  state  courts.  It  is  true  that  this  has  been  done 
in  certain  notable  instances  which  have  attracted  considerable 
attention.  In  the  vast  number  of  instances,  however,  the  court 
has  left  to  the  state  legislatures  the  determination  of  what  was 
wise  and  reasonable.  Thus,  in  191 1  Justice  Harlan  said: 
''Much  may  be  done  by  a  State  under  the  police  power  which 
many  may  regard  as  an  unwise  extension  of  governmental 
authority.  But  the  Federal  courts  have  no  power  to  over- 
turn such  legislation  simply  because  they  do  not  approve  or 
because  they  deem  it  unwise  or  inexpedient.'"  So,  also.  Jus- 
tice Holmes  has  said:  "When  a  state  legislature  has  declared 
that,  in  its  opinion,  policy  requires  a  certain  measure,  its  action 

^Brodnax  v.  Missouri,  219  U.  S.  285. 


THE  JUDICIAL  SYSTEM  OF  THE  STATES      277 

should  not  be  disturbed  by  the  courts  under  the  14th  Amend- 
ment, unless  they  can  see  clearly  that  there  is  no  fair  reason 
for  the  law  that  would  not  require  with  equal  force  its  extension 
to  others  whom  it  leaves  untouched."^ 


The  Structure  of  the  Courts 
I.  The  Judge 

The  judge  of  a  court  of  law  is  a  constant  element  found  in  The  judge 
every  court.  Without  him  there  could  be  no  court.  The  judge 
presides  at  the  trial  of  the  case ;  that  is,  the  case  is  conducted 
in  his  presence  and  according  to  his  directions.  He  does  more 
than  that — he  applies  the  rules  of  law  to  the  facts  presented 
to  him.  In  cases  of  summary  jurisdiction  this  means  that  he 
hears  the  pleas,  determines  the  facts  himself,  and  gives  the 
award  or  sentence.  Where  the  judge  is  sitting  with  a  jury, 
the  jury  determines  the  facts  ^  and  applies  to  these  facts  the 
law  as  set  forth  in  the  instructions  given  by  the  judge  of  his 
own  motion  or  upon  the  request  of  counsel  for  the  parties.^ 
The  law  which  the  judge  applies  may  consist  of  rules  of  equity, 
of  common  law,  or  of  statute  law.  These  rules  of  law,  however, 
are  applicable  not  alone  to  the  final  determination  of  facts, 
either  by  the  judge  or  the  jury,  but  govern  the  entire  procedure 
of  the  case.  Thus  a  very  important  part  of  the  functions  of  a 
judge  is  to  see  that  the  case  is  tried  before  him  in  accordance 
with  the  rules  of  procedure  which  are  determined  by  law. 
This  means  that  he  must  guard  the  rights  of  both  the  plaintiff 
and  the  defendant,  or,  in  criminal  law,  the  right  of  the  state 
to  prosecute  and  the  right  of  the  accused  to  present  his  defense. 
Thus  the  judge  is  constantly  required  to  rule  upon  the  admis- 
sibility of  evidence  and  the  methods  employed  by  both  sides 
in  stating  their  cases. 

"^Missouri,  Kansas,  and  Texas  Railway  Company  v.  May,  194  U.  S.  267. 

2 In  some  states  the  jury  technically  determines  both  the  facts  and 
the  law. 

^The  jury  may  in  either  criminal  or  civil  cases  ask  the  judge  for 
further  instructions  on  points  of  law  involved. 


2  78      STATE  AND  MUNICIPAL  GOVERNMENT 

Method  of  In  the  colonies,  as  in  England,  the  judges  were  appointed  by 
j^udges°^  the  executive.^  With  the  Revolutionary  movement,  however, 
and  the  revolt  against  the  power  of  the  executive,  a  more 
democratic  method  of  selecting  the  judges  was  introduced.  In 
some  of  the  states  the  judges  were  chosen  by  the  state  legisla- 
ture, and  in  1812  Georgia  was  the  first  state  to  provide  for 
the  popular  election  of  any  of  the  judges,  while  in  1832 
Mississippi  provided  for  the  election  of  all  her  judges  by  direct 
popular  vote.  Nevertheless  some  states  (Massachusetts,  for 
example)  still  vest  the  appointment  of  all  the  judges  in  the 
governor  and  council,  and  in  other  states — as  in  New  Jer- 
sey— the  appointment  of  the  judges  of  the  higher  courts  is 
in  his  hands.  In  the  great  majority  of  states,  however,  the 
judges  are  elected  by  the  people.- 
Reiative  The  method  of  the  selection  of  judges  by  popular  election  is 

merits  of  ,  i      •      i  r  ^  •  r      • 

the  methods  the  most  logical  One  from  the  pomt  of  view  of  popular  sover- 
(ifpopuia"    eignty.    It  enables  the  electorate  of  a  democratic  state  to  con- 
eiection        j-j-ol    immediately    all    departments    of    the    government — the 
cnt^ica^of^    lawmaking  (that  is,  the  legislature),  the  law-enforcing  (that  is, 
thejudgeas  ^^g  executive),  and  the  law-applying    (that  is,  the  judicial). 
And  in  a  democratically  governed  state  the  electorate  should 
have    this   power.     Certain    grave    objections    and    qualifica- 
tions  to   this   statement   must   be   made,   however.     Granting 
that  popular  election  is   the  logical  method   theoretically,   it 
can  be  shown  that  there  are  many  practical  objections  to  the 
exercise  of  this  power  by   the  electorate.    The  judges   differ 
from  most  officials.    In  many  instances  their  decisions  are  final 
unless  revoked  by  a  constitutional  amendment.  Their  decisions, 
in  many  more  instances,  protect  or  punish  the  citizens  of  the 
state  in  their  liberty  and  property  rights,  and  in  countless  cases 
the  decision  of  a  judge  may  result  in  fine  or  imprisonment 

'See  JucIrc  Learned  Hand,  "The  Elective  and  Appointive  Methods 
of  Selection  of  Judges,"  in  Proceedings  of  the  Academy  of  Political 
Science,  Vol.  Ill,  No.  2,  pp.  82-92;  Simeon  E.  Baldwin,  The  American 
Judiciary,  chap,  xxii ;  A.  N.  Holcombc,  State  Government  in  the  United 
States,  p.  351;  Bulletins  for  the  Massachusetts  Constitutional  Conven- 
tion, Vol.  I,  pp.  585-618,  with  references. 

-In  Rhode  Island,  South  Carolina,  Vermont,  and  Virginia  the  judges 
of  the  higher  courts  arc  chosen  by  the  legislature. 


THE  JUDICIAL  SYSTEM  OF  THE  STATES      279 

or  the  award  of  damages.  The  judge  is  thus  the  most  impor- 
tant state  official  in  the  application  of  the  law.  Because  of  this 
the  judge,  as  an  official,  is  subject  to  constant  scrutiny  and 
criticism.  To  give  satisfaction  his  acts  must  be  beyond  suspi- 
cion of  partiality  and  favoritism,  whether  personal,  party,  or 
political.  The  electorate  demands  more  of  its  judges  than  it 
does  of  any  other  officer. 

If  the  judges  are  chosen  by  popular  election  their  selection  [The  eiecto- 
is  governed  by  the  principles  of  other  elections ;  that  is,  the  of  the  judge 
judges  must  be  candidates.  As  candidates  they  must  be  ^^t^f^"^* 
nominated  by  the  party  machinery,  working  either  through 
conventions  or  direct  primaries.  The  names  of  the  judges  as 
candidates  must  appear  upon  the  ticket  and,  in  most  states, 
in  the  column  devoted  to  the  party.  The  judges  will  be  selected 
by  the  majority  vote  of  the  people,  cast  as  the  electorate  gen- 
erally casts  its  vote;  that  is,  by  marking  the  party  column 
or  by  marking  more  or  less  blindly  the  candidates  which  bear 
certain  party  designations  or  labels.  The  attention  of  the  elec- 
tion ordinarily  centers  upon  the  executive  or  legislative  candi- 
dates for  public  office,  and  popular  interest  is  seldom  aroused 
over  the  personal  merits  of  the  various  candidates  for  judicial 
offices.  Thus,  it  happens  that  the  electorate  generally  ratifies 
the  choice  of  the  party  managers  for  the  judiciary.  However 
critical  the  people  may  be  of  the  actions  of  a  judge  as  an  officer, 
they  are  singularly  careless  in  exercising  their  duty  in  the 
choice  of  the  candidates. 

The  effect  of  this  carelessness  of  the  electorate  is  greatly  [influence 
mitigated  by  the  influence  of  the  bar.  Lawyers  must  try  their  °*  ^^^  ^^""^ 
cases  before  the  judges.  It  is  therefore  to  their  interest  as 
well  as  to  the  interest  of  their  clients  that  the  judges  should 
at  least  be  able  and  that  they  should  be  sufficiently  versed  in 
law  to  make  correct  decisions  which  would  not  be  reversed  on 
an  appeal  to  higher  courts.  The  bar,  through  its  various  asso- 
ciations, therefore,  frequently  if  not  generally  indorses  certain 
candidates  for  judicial  office.  The  influence  of  the  bar  is  felt 
by  party  organizations  and  sometimes  is  conclusive  with  them. 
Only  rarely,  where  a  corrupt  political  machine  is  all-powerful 
or  where  a  popular  or  demagogic  candidate  attains  notoriety, 


2  8o      STATE  AND  MUNICIPAL  GOVERNMENT 

can  the  indorsement  of  the  bar  associations  be  safely  neglected. 
This  is  only  another  way  of  saying  that  even  in  the  case  of 
popular  elections  the  electorate  really  delegates  the  choice  of 
their  officers  to  some  group. 

(2)  Election  The  selection  of  the  judges  by  the  legislature  is  open  to 
SSature    even  greater  objections  than  is  popular  election.    Once  elected, 

the  legislature,  for  practical  purposes,  is  not  responsible  to  the 
electorate  so  far  as  the  choice  of  a  judge  is  concerned.  The 
members  of  the  legislature  are  chosen  for  general  political  con- 
siderations on  wide  political  issues  and  not  solely  for  the  pur- 
pose of  choosing  the  judges.  They  are  the  product  of  the  party 
machinery,  and  each  member  owes  allegiance  to  the  party. 
Thus,  by  appeals  to  party  loyalty  the  managers  of  the 
party  frequently  force  the  choice  of  inefficient  and  even  cor- 
rupt judges.  It  was  partly  because  of  this  that  the  demand  for 
popular  election  became  so  strong.  It  was  felt,  and  rightly, 
that  the  party  leaders  before  the  election  would  be  more  sus- 
ceptible to  good  influences  than  the  members  of  the  legislature 
after  their  election. 

(3)  Appoint-  The  selection  of  the  judges  by  the  governor  has  much  to 
gov^e^rnoV"^  commcnd  it.  It  may  be  said  that  the  governor  is  the  product 
with  the      Qf  j^jjg  party  system,  is  chosen  for  political  reasons  on  wide 

consent  of  ir       j      j  ^  1 

the  council    issues,  and  is  susceptible  to  the  control  of  the  organization  and 

or  senate  ,  ,  .  » n      1  •      •      .  ir  ^    ^i 

the  machinery.    All  this   is  true.    Yet  the  governor  occupies 

such  an  important  position  and  is  so  much  in  the  public  eye 
.that  his  every  act  is  subject  to  closer  scrutiny  and  criticism 
than  are  the  acts  of  the  hundreds  of  members  of  the  legisla- 
ture, A  strong  executive — that  is,  one  with  a  wide  appointing 
power — carries  an  immense  responsibility  and  thus  is,  in  gen- 
eral, unwilling  or  afraid  to  make  poor  appointments.  iSIoreover, 
it  must  be  remembered  that  the  same  influences  of  the  bar 
associations  are  operative  upon  the  governor  as  upon  the  party 
leaders  and  perhaps  with  even  greater  effect.  In  every  state 
where  the  governor  appoints  the  judg^,  his  nominees  are  sub- 
ject to  ratification  by  the  council  or  senate.  It  is  impossible 
to  estimate  the  effect  of  this.  At  times  in  certain  states  the 
necessity  for  such  confirmation  may  have  prevented  bad  ap- 
pointments.   At  times  the  governor  may  have  been  forced  to 


THE  JUDICIAL  SYSTEM  OF  THE  STATES      281 

nominate  a  candidate  the  confirming  body  would  accept.  In 
general,  observers  deprecate  limitations  of  this  sort  upon  the 
governor's  appointing  power. ^  This  does  not  mean  that  gover- 
nors have  not  made  poor  appointments,  but  on  the  whole  the 
testimony  is  that  the  judges  appointed  by  them  are  generally 
of  a  higher  type  and  of  greater  ability  than  those  elected  by 
the  people. 

The  terms  for  which  the  judges  are  chosen  vary  from  a  few  Terms  of 
years  to  appointment  for  life.  In  IMassachusetts  all  the  judges 
are  appointed  by  the  governor  for  life.  In  Vermont,  on  the 
other  hand,  the  legislature  elects  the  judges  for  two  years. 
The  judges  of  the  supreme  court  in  Pennsylvania  are  chosen 
by  popular  election  for  twenty-one  years ;  in  New  York  for 
fourteen  ;  in  Illinois  for  nine.  Perhaps  the  average  judicial  term 
approximates  seven  years.  In  many  states  a  distinction  is 
made  between  the  judges  of  the  higher  courts  and  those  of  the 
lower  courts,  the  tenure  of  the  judges  for  the  higher  courts 
generally  being  longer.  There  is  much  to  be  said  in  favor  of  a 
long  judicial  tenure.  It  is  generally  conceded  that  the  bar 
and  litigants  alike  demand  ability  from  their  judges.  This 
ability  comes  from  experience  and  practice,  and  the  judges  are 
everywhere  chosen  from  the  practicing  members  of  the  bar. 
Since  the  compensation  of  the  judges  is  rarely  equal  to  the 
income  which  a  first-rate  practicing  lawyer  may  obtain,  lawyers 
of  ability  naturally  hesitate  to  abandon  their  practice  for  the 
sake  of  a  few  years  on  the  bench.  Therefore,  if  they  are  elected 
they  are  obliged  to  look  ahead  to  reelection  or  to  a  return  to  an 
active  career  with  their  clients  scattered.  Hence  it  is  cus- 
tomary for  a  judge  once  elected  to  seek  reelection.  This  forces 
him  to  undergo  periodically  the  demands  of  the  political  ma- 
chinery of  the  party.  He  must  have  satisfied  not  simply  the 
litigants  before  his  court  and  the  bar  but  the  party  managers 
as  well,  and  even  after  his  nomination  he  has  to  run  the  risk 
of  defeat  at  election  because  his  party  upholds  some  political 
issue  totally  unconnected  with  his  service  on  the  bench.  Both 
theoretically  and  practically  it  would  seem  that  tenure  during 
good  behavior  is  more  to  be  desired  than  frequent  elections. 

iSee  pages  139-143. 


2  82      STATE  AND  MUNICIPAL  GOVERNMENT 

Removal  of  Judges  are  removable  by  four  different  methods :  election, 
("t^y  ''address,"  impeachment,  and  recall.  Where  the  judge  is  chosen 
election        jqj.  ^  definite  term  he  is  subject  to  removal  at  the  end  of  that 

term  through  the  election  of  another  candidate.    Thus,  election 

permits  removal  at  certain  definite  periods. 

(2)  By  "ad-      In  many  states  a  judge,  chosen  for  whatever  term,  may  be 

removed  by  the  governor  on  the  joint  address  or  resolution  of 
both  houses  of  the  legislature.  This  method  is  to  be  sharply 
distinguished  from  removal  by  impeachment,  to  be  discussed 
later.  An  address  or  joint  resolution  is  a  political  act.  It  is 
applied  to  judicial  officers,  not  because  they  have  committed 
crimes  or  misdemeanors  worthy  of  impeachment  but  because 
their  character,  actions,  or  ability  have  failed  to  give  satisfac- 
tion. In  some  states  an  address  may  be  passed  by  a  mere 
majority ;  in  others  a  higher  majority  is  required.  The  gover- 
nor in  most  states  is  not  compelled  to  remove  the  incumbent 
against  whom  the  address  is  aimed,  but  he  may  do  so.  Much 
can  be  said  in  favor  of  this  method  of  removal.  Few  judges 
are  corrupt  and  few  commit  offenses  worthy  of  impeachment. 
More  judges,  however,  fail  to  give  satisfaction  because  of  their 
personality  or  lack  of  ability.  These  judges  may  hold  their 
positions  as  the  result  of  executive  appointment  or  election. 
Their  presence  on  the  bench  for  short  or  long  terms,  however, 
is  unfortunate,  and  removal  by  address  gives  the  executive  a 
method  of  rectifying  previous  errors.  This  method  of  removal 
of  judges,  however,  is  seldom  invoked. 

(3)  By  im-  Impeachment  is,  in  theory,  a  judicial  process.  The  lower 
peac  men     j^^^gg  ^f  ^^le  legislature  brings  charges  against  a  judge  that  he 

has  been  guilty  of  some  crime  or  misdemeanor.  The  upper 
house  of  the  legislature,  acting  as  a  court,  hears  the  evidence 
against  the  judge  (who  is  allowed  to  present  evidence  in  his 
own  behalf)  and  finally,  having  heard  the  evidence,  votes  to 
sustain  or  to  dismiss  the  articles  of  impeachment.  In  theory 
impeachment  should  not  be  sought  against  a  judge  unless  he 
is  guilty  of  some  serious  offense.  In  some  states,  however, 
where  removal  by  address  is  not  allowed,  impeachment  is  the 
only  method  by  which  a  judge  may  be  removed  before  his 
term  of  office  expires. 


THE  JUDICIAL  SYSTEM  OF  THE  STATES      283 

The  recall  of  judges  can  be  applied  only  in  those  states  (4)  By  recall 
where  the  judiciary  is  elected,  and  it  has  been  adopted  by  only 
a  few,^    The  method  is  the  same  as  for  the  recall  of  any  state 
officer;  namely,  a  petition  and  an  election. 

Theoretically  there  is  much  to  be  said  both  in  favor  and  Merits  01 
in  opposition  to  the  recall  of  judges.  In  principle  a  popular  recai" 
recall  might  be  the  means  of  keeping  the  courts  in  close  har- 
mony with  the  people,  of  insuring  that  the  administration  of 
justice  is  in  accord  with  public  sentiment  and  that  the  judges 
are  the  servants,  not  the  masters,  of  the  people.  But  there  are 
strong,  equally  theoretical  objections  to  the  popular  recall  of 
judges.  They,  more  than  any  other  officers,  should  be  beyond 
the  suspicion  of  political  party  or  personal  influence.  Judges 
should  be  protected  from  the  waves  of  popular  discontent  and 
should  administer  the  laws  irrespective  of  momentary  criticism. 
The  remedy  for  the  enforcement  of  a  bad  law  or  one  with 
which  the  people  are  not  in  sympathy  lies  not  in  the  removal 
of  the  judge,  but  in  the  amendment  of  the  statutes.  Moreover, 
it  can  be  demonstrated  theoretically  that  election  is  not  the 
best  means  for  obtaining  a  satisfactory  judge,  and  thus  the 
recall  would  only  accentuate  the  faults  of  the  elective  process. 
The  foregoing  considerations,  however,  are  largely  theoretical. 
The  election  of  judges  perhaps  has  generally  produced  a 
judiciary  satisfactory  to  the  people  of  the  states.  Although  the 
recall  of  judges  exists  in  four  states,  no  state  judge  has  ever 
been  recalled.  Just  because  the  recall  of  judges  offers  oppor- 
tunities for  weakening  the  judiciary,  it  must  not  be  assumed 
that  these  opportunities  will  be  seized.  Few  political  systems 
reveal  in  actual  operation  either  the  theoretical  advantages  or 
disadvantages  which  their  proponents  or  critics  find  in  them. 
Much  depends  upon  traditional  methods  by  which  the  system 
is  worked. 

A  variant  of  the  recall  of  judges  is   found   in   Colorado.  The  recall 
This  is  the  recall  of  judicial  decisions."    In  that  state,  when  decisions 
the  supreme  court  has  declared  a  state  law  unconstitutional,  a 
stated  number  of  voters  may  petition  for  a  popular  referendum 

1  Arizona,  California,  Colorado,  Kansas,  Nevada,  Orepon. 

2  This  has  been  declared  unconstitutional,  198  Pac.  146,  150. 


2  84      STATE  AND  MUNICIPAL  GOVERNMENT 

upon  the  question  of  whether  the  law  shall  be  enforced  in 
spite  of  the  decision  of  the  court.  Little  can  be  said  for 
this  device.  In  the  first  place,  it  is  applied  not  to  the  law 
in  general  but  to  the  decision  of  the  court  upon  a  particular 
case,  and  another  case  might  well  arise  in  which  the  court 
would  reaffirm  its  decision  contrary  to  the  popular  verdict, 
holding  that  the  cases  were  different.  In  the  second  place, 
since  191 6  the  Judiciary  Act  of  the  United  States  has  been 
amended  so  that  decisions  of  state  courts  against  the  consti- 
tutionality of  state  laws  on  the  ground  of  their  conflict  with 
the  Federal  Constitution  are  subject  to  appeal  to  the  Supreme 
Court  of  the  United  States.  In  case  of  a  conflict  between  a 
state  law  and  a  state  constitution  it  would  seem  far  wiser 
and  hardly  more  difficult  to  amend  the  constitution,  thereby 
establishing  a  general  rule,  than  to  recall  a  single  decision. 

2.  The  Clerk 

The  clerk  All  courts  of  record  are  provided  with  a  clerk.  He  is  purely 
a  ministerial  officer  and  issues  writs  and  legal  processes  accord- 
ing to  the  statutes  and  is  custodian  of  all  the  papers  and  records 
of  the  cases  coming  before  the  courts.  He  is  thus  an  offiser 
of  very  great  importance.  Generally,  for  the  intermediate 
courts,  he  is  elected  by  the  people  of  the  district  or  county. 
In  some  states  the  judges  may  appoint  the  clerks  of  their 
courts,  particularly  of  the  higher  courts.  Since  he  is  a  minis- 
terial officer  and  his  duties  are  of  a  highly  technical  and  im- 
portant nature  involving  no  discretion,  there  would  seem  to 
exist  little  reason  for  making  him  an  elective  officer.  In  some 
states  the  clerk  of  the  district  or  county  court  combines  the 
function  of  the  county  clerk  with  his  judicial  duties.^ 

3.  The  Sheriff 

The  sheriff  The  sheriff  is  the  executive  officer  of  the  county,  and  as  such 
his  duties  will  later  be  discussed.-  As  judicial  officers  the  sheriff 
and  his  deputies  are  responsible  for  the  maintenance  of  order 
within  the  court,  serve  the  writs  and  summons  issued  by  the 

^See  page  329.  -See  pages  327-329. 


THE  JUDICIAL  SYSTEM  OF  THE  STATES      285 

court  and  its  clerk,  and  execute  the  sentences  of  the  judge.  In 
civil  cases  the  sheriff  may  seize  and  sell  property  to  satisfy 
the  award  of  the  court. 

4.  The  Jury 

The  jury  is  an  ancient  instrument  of  English  jurispru-  The  jury 
dence.  Trial  by  jury  is  considered  the  basis  of  Anglo-Saxon 
justice.  Not  all  the  colonies  adopted  it  in  its  English  form, 
but  the  institution  has  finally  developed  so  that  the  system  is 
not  very  dissimilar  to  that  of  England.  In  criminal  cases  trial 
by  jury  involves  two  steps :  indictment  by  the  grand  jury  and 
trial  by  the  petit  jury. 

The  grand  jury^  is  a  body  of  not  less  than  thirteen  nor  more  The  grand 
than  twenty-three  persons  selected  according  to  statute  and 
sworn  by  the  court.  It  is  the  duty  of  the  grand  jury  to  inquire 
as  to  the  commission  of  crimes  within  the  territorial  district 
for  which  it  is  chosen.  In  legal  phraseology  it  makes  inquest. 
Once  summoned,  the  grand  jury  may  inquire  into  any  matter 
of  public  concern.  It  may  summon  before  it  any  person  or 
officer  for  the  purpose  of  obtaining  information.  Having  heard 
the  evidence  the  grand  jury  makes  a  presentment;  that  is,  it 
presents  to  the  court  a  bill  of  indictment  or,  more  briefly,  an  indict- 
indictment  charging  a  person  or  persons  with  certain  crimes 
or  misdemeanors.  This  indictment  is  the  result  of  a  majority 
vote  of  the  grand  jury,  which  has  heard  the  evidence  but  not 
the  defense. 

The  positive  action  of  the  grand  jury  is  found  in  its  power  Positive 

^  1  .  1  -J-         action  of  the 

to  investigate  any  person  or  subject  and  to  present  an  mdict-  grand  jury 
ment.  The  grand  jury  is  thus  an  important  instrument  in 
popular  self-government.  The  enforcement  of  the  laws  and  their 
application  is  not  intrusted  to  any  one  officer,  but  to  a  group  of 
citizens  of  the  district.  Should  the  proper  officials  be  negligent 
in  enforcing  the  law  or  in  the  performance  of  their  duties  the 
grand  jury  may  investigate  their  procedure  and  their  actions. 
Should  there  be  evidence  before  the  grand  jury  that  the  police  are 
not  enforcing  the  laws  and  that  crime  is  prevalent  the  grand  jury 
may  present  an  indictment  of  the  criminals  and  of  the  officers. 
iSee  G.  E.  Edwards,  The  Grand  Jury. 


Negative 
action  of  the 
grand  jury 


Workings 
of  the 
grand  jury 


286      STATE  AND  MUNICIPAL  GOVERN]MENT 

The  grand  jury  also  serves  as  a  means  of  protection  against 
unjust  or  unnecessary  prosecutions.  No  man  may  be  put  to 
the  expense  and  danger  of  a  criminal  trial  by  a  jury  unless 
indicted  by  the  grand  jury,  except  in  petty  cases.  This  means 
that  a  majority  of  a  group  of  his  neighbors,  having  heard  the 
evidence  against  him,  thinks  that  it  is  likely  that  he  may  have 
committed  the  crime.  Indictment  by  the  grand  jury  is  thus 
a  great  protection  against  the  possible  tyranny  of  the  police  or 
prosecuting  officers.^ 

When  the  grand  jury  is  summoned  by  the  sheriff  it  takes  its 
seat  in  the  courtroom  and  is  sworn  by  the  clerk  of  the  court.- 
The  judge  then  charges  the  grand  jury  as  to  its  rights  and 
duties,  explaining  very  carefully  that  while  it  is  in  session  it 
has  full  power  to  summon  before  it  any  person  and  make  in- 
quest on  any  subject.  The  judge  points  out  that  the  prosecut- 
ing attorney  will  act  with  the  grand  jury  as  its  adviser,  but 
that  the  grand  jury  need  not  be  bound  by  his  advice  nor  follow 
his  directions.^  The  prosecuting  attorney  presents  for  the  con- 
sideration of  the  grand  jury  the  cases  which  have  been  sent  up 
from  the  lower  courts,  either  as  the  result  of  appeal  or  because 
the  determination  of  the  case  was  beyond  the  jurisdiction  of 
the  lower  court.  The  jury  hears  the  evidence  which  the  police 
and  prosecuting  attorney  have  gathered,  examines  the  wit- 
nesses, and  then  votes  to  indict  or  to  dismiss  the  case.    When 


iln  some  states  prosecution  by  information  is  allowable.  Under  such 
procedure  the  prosecuting  attorney  may  under  oath  initiate  a  prosecu- 
tion.   This  power,  however,  is  carefully  limited  by  statute. 

20ath  taken  by  the  grand  jury   in  Massachusetts:   "You   as  Grand 

Jurors  of  this  inquest  for  the  body  of  this  county  of ,  do  solemnly 

swear  that  you  will  diligently  inquire  and  true  presentment  make  of  all 
such  matters  and  things  as  shall  be  given  you  in  charge.  The  Common- 
wealth's counsel,  your  fellows,  and  your  own,  you  shall  keep  secret; 
you  shall  present  no  man  for  envy,  hatred  or  malice;  neither  shall  you 
leave  any  man  unprescntcd  for  love,  fear,  favor,  affection,  or  hope  of  re- 
ward, but  you  shall  present  things  truly  as  they  come  to  your  knowledge, 
according  to  the  best  of  your  understanding.     SO  HELP  YOU   GOD." 

•'Within  recent  years  a  grand  jury  in  one  state  made  an  extended 
investigation  upon  the  actions  and  conduct  of  the  office  of  a  prosecuting 
attorney.  For  this  purpose  the  governor  of  the  state  appointed  a  special 
attorney  to  assist  the  grand  jury. 


THE  JUDICIAL  SYSTEM  OF  THE  STATES      287 

it  has  completed  its  work  the  grand  jury  comes  before  the  court 
and  presents  the  results  of  its  action  in  the  form  of  indict- 
ments.^ If  it  reports  to  the  court  that  it  has  completed  its  work 
it  may  be  dismissed,  but  the  court  has  no  power  to  dismiss 
a  grand  jury  of  its  own  initiative,  and  the  latter  may  continue 
to  make  inquiry  into  evidence  as  long  as  it  sees  fit. 

The  petit  jury,  or  trial  jury,  consists  in  most  states  of  twelve  The  petit 
men.  These  are  chosen  by  lot  from  panels  or  lists  of  names  ^""^^ 
prepared  in  various  ways  and  filed  with  the  clerk  of  the  court. 
The  clerk  of  the  court  draws  the  names  of  twelve  jurors,  who 
take  their  seats  in  what  is  known  as  the  jury  box.  In  criminal 
cases  and,  in  some  states,  in  civil  cases  both  the  prosecution 
and  the  defense  may  "challenge"  a  juror;  that  is,  claim  that 
he  is  unfitted  to  perform  his  function  because  of  prejudice  or 
some  other  reason.  In  some  jurisdictions  the  challenging  of 
jurors  has  been  allowed  to  go  to  such  an  extent  as  to  constitute 
a  scandal.  The  indictment  of  the  grand  jury  in  criminal  affairs, 
or  the  claims  of  the  plaintiff  in  civil  cases,  is  read  to  the  jury. 
The  duty  of  the  petit  jury  is  to  detei^mine  the  facts  of  a  case. 
Each  side  may  present  evidence  to  substantiate  its  claims,  and 
the  jury,  in  secret,  must  weigh  the  evidence  and  determine 
the  facts  in  the  form  of  a  verdict  (vere  dictum). 

The  theory  of  jury  trial  rests  upon  the  assumption  that  a  Theory 
man  is  entitled  to  be  considered  innocent  and  to  the  possession  petit  jury 
of  his  life,  liberty,  and  property  unless  twelve  of  his  neighbors 
(men  chosen  from  the  vicinage)  are  convinced  that  he  is  guilty 
of  some  crime.  The  jury  determines  the  facts ;  that  is,  the 
truth  of  the  evidence  against  the  defendant.  That  they  are 
able  to  do  this  rests  upon  the  assumption  that  being  persons 
like  the  defendant  they  can  understand  and  determine  how  an 
ordinary  man  would  act  under  similar  circumstances. 

Trial  by  jury  is  often  criticized.    Cases  may  be  cited  where  Criticism  of 
passion  or  sentiment  has  swayed  the  jury  and  verdicts  have  been  system 
brought  in  which  shocked  the  community.    Instances,  moreover, 
are  not  wanting  where  fraud  and  crime  have  been  suspected 
and  even  proved  and  where  juries  have  been  tampered  with. 

lAn  indictment  against  an  accused  person  is  sometimes  known  as  a 
"true  bill." 


288      STATE  AND  MUNICIPAL  GOVERNMENT 


Actual 
working  of 
the  jury 
system 


In  some  quarters  it  is  felt  that  the  juries  are  too  lenient  and 
refuse  to  convict  criminals  about  whose  guilt  the  community 
seems  to  have  little  doubt.  Nevertheless,  on  the  whole,  the  jury 
system  is  regarded  as  a  success.  The  lawyers  who  try  cases 
before  a  jury,  and  even  the  prosecutors  who  attempt  to  con- 
vict the  violators  of  laws,  agree  that  it  "works  substantial 
justice."^  But  this  is  not  the  real  question.  Theoretically 
the  jury  should  not  "work  substantial  justice,"  but  should 
decide  upon  the  truth  of  the  facts  submitted  to  it.  The  jury 
is  an  institution  for  the  determination  of  facts  irrespective  of 
the  consequences  which  may  result  from  their  decision.  The 
laws  may  be  unwise ;  they  may  be  contrary  to  public  senti- 
ment ;  but  it  is  the  function  of  the  jury  not  to  enforce  the  law 
in  accordance  with  popular  sentiment  but  to  pass  upon  the 
truth  or  falsity  of  the  evidence  before  it.  When  that  is  done 
its  duty  is  complete.  A  jury  should  not  be  concerned  with  the 
making  of  the  law,  which  is  the  function  of  the  legislature,  nor 
with  the  application  of  the  sentence,  which  is  the  function 
of  the  judge. 

Very  frequently,  however,  juries  are  not  governed  by  these 
theoretical  rules.  They  attempt  to  do  substantial  justice ;  that 
is,  to  bring  in  verdicts  not  only  in  accordance  with  their  oaths 
but  in  accordance  with  the  popular  demand.  Too  often  they 
see  the  facts  colored  by  the  passion,  sympathy,  or  prejudice  of 
the  time.  In  so  doing  they  violate  the  principles  and  theory 
of  jury  trial,  but  they  give  satisfaction  to  the  community. 
The  statute  books  contain  many  laws  of  which  popular  opinion 
does  not  approve.  There  are  many  other  laws,  accepted  in 
theory,  whose  application  is  not  generally  desired  by  certain 
classes.  It  is  difficult  to  get  convictions  on  cases  under  these 
laws.  The  jurors  instinctively  feel  that  they  themselves  might 
or  do  violate  such  laws,  and  they  frequently  refuse  to  be  con- 
fined to  the  simple  fact  of  the  determination  of  the  evidence. 
They  try  to  do  justice.  Again,  the  jurors  frequently  have  in 
mind  the  penalty  prescribed  by  law,  and,  usurping  the  functions 
of  the  judge,  they  refuse  to  convict  for  an  offense  bearing  a 
range  of  severe  penalties,  but  convict  for  an  offense  where  the 

iSec  Arthur  Train,  The  Prisoner  at  the  Bar,  chap,  xi,  "The  Jury." 


THE  JUDICIAL  SYSTEM  OF  THE  STATES      289 

penalties  are  less  severe.  In  other  cases,  where  the  jurors  rep- 
resenting the  popular  opinion  are  generally  agreed  that  the 
offense  is  worthy  of  severe  punishment,  they  may  be  all  too 
ready  to  see  the  facts  in  a  light  unfavorable  to  the  accused ; 
thus,  in  burglary  and  arson  and  robbery  it  is  comparatively 
easy  for  a  prosecutor  to  obtain  conviction.  It  is  far  more 
difficult,  however,  to  obtain  a  conviction  for  the  crime  of 
murder  in  the  first  degree,  because  in  most  states  the  penalty 
prescribed  is  death,  and  juries  are  loth  to  bring  in  a  verdict 
which  requires  the  judge  to  sentence  the  accused  to  death. 
This  greatly  weakens  not  merely  the  enforcement  of  law  but 
the  administration  of  justice.  History  shows  that  the  certainty 
of  conviction,  rather  than  the  severity  of  the  penalty,  is  the 
greatest  deterrent  to  crime.^ 

In  spite  of  these  criticisms  and  in  spite  of  certain  flagrant  Merits  of 
instances  of  the  miscarriage  of  justice,  the  jury  system  gives  system^ 
satisfaction.  It  is  rightly  regarded  as  the  greatest  bulwark 
against  tyranny  and  injustice.  Although  its  weakness  may, 
perhaps,  be  demonstrated  in  the  escape  of  certain  guilty  per- 
sons, society  is  better  satisfied,  on  the  whole,  to  allow  these  to 
go  unpunished  than  to  make  it  possible  or  likely  that  the  inno- 
cent should  suffer.  The  grand  jury  and  the  petit  jury  may  be 
regarded  from  two  points  of  view — as  agents  of  the  court  to 
secure  the  enforcement  of  the  laws  and  as  agents  of  society  to 
insure  or  protect  the  rights  of  the  citizens.  This  last  considera- 
tion will  be  discussed  later.- 

5.  The  Prosecuting  Attorney 

The  prosecuting  attorney,  commonwealth's  attorney,  state's  The 
attorney,  district  attorney,  county  attorney,  or  public  prosecutor,  attorney  °^ 
as  he  is  variously  called,  is  a  county  and  state  officer.   As  such  he 
has  been  mentioned  in  discussing  the  enforcement  of  state  laws^ 
and  will  be  further  discussed  in  describing  county  government.* 
The  prosecuting  attorney,  however,  is  a  quasi-judicial  officer, 

1  Judges  in  some  states  have  the  power  to  set  aside  findings  of  juries 
in  civil  cases  or  convictions  in  criminal  cases  as  contrary  to  the  law  and 
evidence,  and  to  order  a  new  trial. 

2See  pages  304-305.  ^See  page  152.  *See  pages  326-327. 


2  90      STATE  AND  MUNICIPAL  GOVERNMENT 

and  as  such  is  a  part  of  the  judicial  system  of  the  state.  In 
civil  affairs  the  county  attorney  may  in  some  states  conduct 
suits  in  which  the  county  is  involved,  but  the  greater  part  of 
his  duties  is  connected  not  with  civil  but  with  criminal  cases. 
He  makes  a  preliminary  investigation  of  crime  with  the  police 
and  detectives  of  the  state  or  county  and  prepares  the  cases 
for  the  grand  jur>'.  Although  the  grand  jury  may  hold  a  general 
inquest  concerning  all  matters  in  its  district,  as  a  matter  of  fact 
it  generally  confines  itself  to  the  consideration  of  cases  prepared 
for  it  by  the  district  attorney.  It  is  thus  of  vital  importance 
for  the  good  order  of  the  community  that  the  district  attorney 
should  be  an  upright,  able,  and  far-seeing  officer.  The  district 
attorney  meets  with  the  grand  jury  and  acts  as  its  adviser.  He 
thus  assists  in  the  framing  of  the  indictments  presented.  In 
some  states  (and  formerly  in  all  states)  this  is  a  matter  of  vital 
importance,  since  the  court  procedure  required  an  indictment 
in  language  too  technical  for  most  laymen.  After  the  grand 
jury  has  indicted  an  offender  the  district  attorney  is  intrusted 
with  the  prosecution  of  the  case.  It  should  be  his  function  not 
to  attempt  to  secure  a  conviction  but  to  obtain  justice.  A 
prosecuting  officer  thus  becomes  a  judicial  officer  in  his  attempt 
not  simply  to  win  the  case  but  to  do  justice.  Under  certain 
circumstances  the  district  attorney  may,  with  the  assent  of  the 
court,  refuse  to  prosecute  on  the  indictment  presented  by  the 
grand  jury.  This  power  of  nolle  prosequi  should  be  rarely 
used,  and  in  any  case  is  used  only  with  the  assent  of  the  court. 
The  district  attorney,  however,  has  considerable  latitude  as  to 
when  the  case  should  be  prosecuted  and  may  postpone  it 
until  another  session  of  the  court,  releasing  the  accused  on  bail. 
Cases  are  not  unknown  where  an  attorney  has  consented  to 
successive  postponings  until  the  witnesses  against  the  accused 
have  become  unavailable  and  the  case  has  thus  failed.  The 
prosecuting  attorney,  moreover,  is  generally  consulted  by  the 
governor  and  pardoning  board  if  an  appeal  is  made  for  execu- 
tive clemency  and  pardon.  In  some  states  his  recommendations 
carry  great  weight. 


CHAPTER  XV 

THE  PROCEDURE  OF  THE  COURTS 

I.    Criminal  Cases 

There  are  eight  steps  which  are  ordinarily  followed  in  a  criminal 
criminal  trial.  The  first  step  is  the  apprehension  of  the  de-  (i)  Arrest 
fendant.  This  is  known  as  the  arrest.  Arrests  may  be  made 
by  anyone,  either  with  or  without  a  warrant.  A  warrant  is  a 
writ  issued  by  a  justice  of  the  peace  to  an  officer  or  private  citi- 
zen commanding  him  to  apprehend  the  defendant  and  bring  him 
into  court.  An  arrest  may  be  made  by  a  private  citizen  when 
a  crime  of  any  sort  has  been  committed  within  his  presence. 
Either  a  private  citizen  or  an  officer  may  arrest  a  person  who 
has  committed  a  felony  whether  in  his  presence  or  not,  but  it 
is  of  vital  importance  that  a  felony  should  have  actually  been 
committed.  If  not,  and  a  private  citizen  attempts  to  arrest 
another,  he  may  be  prosecuted  for  false  arrest.  However,  if  a 
felony  has  been  committed,  an  officer  may  arrest  anyone 
whom  he  has  reasonable  ground  to  believe  has  committed  it. 
This  is  the  sole  distinction  between  the  right  of  a  private  citizen 
and  of  an  officer  to  make  arrests.  Practically,  however,  an 
officer  is  employed  and  paid  to  make  arrests  and  to  detect  and 
prevent  the  commission  of  crimes,  while  a  private  citizen  is 
not.  Nevertheless,  if  a  crime  is  committed  in  the  presence  of  a 
private  citizen,  the  citizen  must  take  some  steps  either  to 
prevent  the  crime  or  to  apprehend  the  criminal ;  otherwise 
he  may  be  regarded  as  an  accomplice.  The  extent  to  which 
he  should  act  depends  upon  circumstances  and  is  generally 
satisfied  by  a  report  to  the  police  authorities. 

Commitment  is  an  act  of  a  justice  or  court  in  sending  the  (2)commit- 
prisoner  to  a  place  where  he  may  be  detained  until  he  is  tail 
released  or  removed  by  order  of  the  court.    Since  justices  of 
the  peace  and  courts  of  the  lowest  order  have  only  limited 

291 


292      STATE  AND  MUNICIPAL  GOVERNMENT 


[Bail] 


(3)  The  ac- 
cusation 


jurisdiction  over  petty  offenses,  their  function  is  to  hold  a  pre- 
liminary hearing  and  to  commit  the  accused  for  safe-keeping 
until  his  case  may  be  heard  before  a  higher  court. 

All  states  provide  that  prisoners  accused  of  a  crime  other 
than  the  most  serious  may  be  released  upon  bail  pending  the  de- 
termination of  their  cases.  The  justice  of  the  peace  or  the  judge 
of  the  lowest  court  and  in  some  states  bail  commissioners  may 
determine  the  amount  of  security  which  they  will  require  for  a 
prisoner's  appearance  at  the  time  and  place  of  the  meeting  of 
the  higher  court.  In  some  states  there  have  been  communities 
where  this  function  has  been  abused.  Accused  persons  have  been 
released  upon  their  own  recognizance  or  the  bail  has  been  fixed 
at  an  amount  which  would  not  deter  the  prisoner  or  his  security 
from  forfeiting  the  bail  and  allowing  the  prisoner  to  escape. 

Accusation  may  take  one  of  two  forms — either  indictment 
by  the  grand  jury  or  information  by  the  prosecuting  officer. 
Both  of  these  have  been  described  in  the  preceding  chapter. 
In  either  case  the  government  accuses  the  prisoner  in  open 
court  of  the  offense  for  which  he  has  been  arrested  and  for 
which  he  is  to  be  tried. 

The  prisoner  is  then  arraigned  (that  is,  he  is  called  to  the 
bar  of  the  court),  the  indictment  or  information  is  read  to  him, 
and  he  is  asked  whether  he  is  guilty  or  not  guilty.  If  he  pleads 
guilty  there  is  no  trial.  The  prisoner  or  his  attorney  may  make 
certain  pleas  to  the  judge  for  clemency,  and  the  prosecuting 
officer  may  inform  the  judge  of  the  prisoner's  record  and  the 
circumstances  of  the  crime.  If  the  plea  of  not  guilty  is  made 
the  case  goes  to  trial. 

The  first  step  in  a  criminal  trial,  after  the  plea  has  been 
entered,  is  the  selection  of  the  jury.  The  clerk  of  the  court 
tion  of  jury  jraws  by  lot  certain  names  from  the  jury  panel.  In  some  states 
both  the  prosecution  and  the  defense  have  the  right  to  examine 
or  question  the  fitness  of  the  jurors  for  the  particular  case. 
As  a  result  of  this  examination  certain  jurors  may  be  excused 
because  they  have  shown  bias,  prejudice,  or  other  evidences  of 
being  unfit  to  try  the  case.  In  all  states  both  the  prosecution 
and  (he  defense  are  allowed  a  certain  number  of  peremptory 
challenges.    This  means  that  they  may  reject  a  certain  number 


(4)  The  ar- 
raignment 
and  plea 


(5)  The 
trial: 
(a)  Selec 


THE  PROCEDURE  OF  THE  COURTS     293 

of  jurors  without  assigning  any  cause.  In  some  jurisdictions 
the  selection  of  a  jury,  particularly  for  an  important  case,  is  a 
long  and  tedious  process.  The  defense  apparently  seeks  to 
obtain  not  jurors  of  average  intelligence,  but  jurors  on  whose 
feelings  or  emotions  it  may  work. 

It  is  sometimes  customary,  though  not  always  essential,  for  (6)  opening 

1       •  t  •  1  •  r       1  •      •  •  the  case 

each  side  to  give  an  outhne  of  what  it  is  going  to  attempt 
to  prove.  This  is  for  the  benefit  of  the  jury  in  order  that 
it  may  intelligently  follow  the  testimony  and  the  evidence 
presented  to  it. 

The  prosecution  then  presents  evidence  to  substantiate  the  (c)  Produc- 
accusation  of  the  indictment.  This  may  be  in  the  nature  of  testimony 
''exhibits"  (that  is,  documents,  photographs,  and  inanimate 
things)  or  the  oral  testimony  of  witnesses.  The  witnesses  who 
are  called  to  give  their  evidence  are  subject  to  direct  examina- 
tion ;  that  is,  questioning  by  the  prosecution  in  order  that  they 
may  clearly  present  to  the  jury  the  facts  to  which  they  testify. 
The  rules  governing  their  evidence  are  highly  technical,  but 
in  general  a  witness  is  allowed  to  testify  only  to  those  facts  he 
has  seen  or  knows.  After  the  direct  examination  comes  the 
cross-examination.  In  this  the  counsel  for  the  defendant  ques- 
tions the  witness  concerning  the  things  to  which  he  has  testified 
on  direct  examination.  He  may  attempt  to  cause  the  witness 
to  contradict  himself  and  to  show  the  jury  that  he  is  not  a 
credible  witness  or  not  to  be  believed.  In  general,  however, 
the  cross-examination  must  be  confined  to  matters  testified  on 
direct  examination.  The  witness  may  be  subject  to  a  redirect 
examination  and  a  re-cross-examination. 

After  all  the  testimony  has  been  presented  by  both  sides  (d)  The 
arguments  are  made.    Both   the  prosecuting  officer  and   the  ^'^^™^° 
attorney  for  the  defendant  review  the  evidence  which  has  been 
presented  and  arrange  it  in  such  a  manner  as  may  convince 
the  jury  of  the  guilt  or  innocence  of  the  defendant. 

The  judge  then  charges  the  jury.    This  means  that  the  judge  (e)  The 
explains  the  law  to  the  jury  or,  in  legal  parlance,  gives  the  charge* 
jury  the  law.    He  defines  the  crime  in  its  various  grades  and 
explains  to  the  jury  what  elements  are  necessary  for  the  con- 
viction to  any  particular  grade.    In  some  states  he  is  allowed 


verdict 


294      STATE  AND  MUNICIPAL  GOVERNMENT 

some  little  latitude  in  commenting  upon  the  evidence,  but  in 
no  state  is  he  allowed  as  much  latitude  as  is  granted  to  the 
judges  in  the  English  courts.  Counsel  on  both  sides  generally 
ask  for  written  instructions  presented  by  them  to  the  judge, 
and  these  the  judge  allows,  with  such  changes  as  he  thinks 
necessary  to  state  the  rules  of  law  correctly. 

(/)  The  The  jury,  under  the  guard  of  a  sheriff  or  a  deputy,  is  con- 

ducted to  a  room  where  it  examines  the  evidence,  discusses  the 
case,  and  comes  to  an  agreement,  or  else  is  obliged  to  report  a 
disagreement.  What  happens  in  the  jury  room  varies  not 
simply  from  state  to  state  but  from  jury  to  jury  within  the 
same  state.  If  it  were  possible  to  generalize,  the  following 
procedure  might  outline  the  usual  steps  taken  by  the  jury  in 
the  process  of  reading  a  verdict.  Often  as  soon  as  the  jury 
gets  to  the  jury  room  a  preliminary  vote  is  taken  as  to  whether 
the  defendant  is  guilty  or  not.  Seldom  is  this  preliminary 
vote  unanimous.  The  evidence  may  then  be  discussed,  some- 
times under  the  direction  of  the  foreman  of  the  jury,  and  a 
vote  then  taken.  If  this  vote  is  unanimous  the  work  of  the 
jury  is  done.  If  it  is  not  unanimous  the  jury  must  continue 
to  argue  the  evidence  and  to  attempt  to  convince  the  minority. 
If  this  is  impossible,  after  a  period  of  time  satisfactory  to  the 
court  the  judge  may  discharge  the  jury  and  order  a  new  trial. 
If  unanimity  is  reached  the  jury  reports  to  the  court  and 
delivers  the  verdict  by  its  foreman. 

ig)  The  If  the  accused  is  found  guilty  the  judge  may  at  once  apply 

the  sentence  prescribed  by  the  law  or  postpone  sentencing  the 
prisoner  until  some  future  date.  When  the  prisoner  is  sen- 
tenced he  is  arraigned  at  the  bar  and  his  attorney  may  make  a 
final  plea  for  clemency.  The  judge  then  determines  from  the 
nature  of  the  case  and  the  character  of  the  defendant  what 
sentence  the  prisoner  shall  receive.  In  some  cases  no  latitude 
is  allowed  to  the  judge;  for  example,  in  cases  of  murder  of  the 
first  degree.  In  other  cases  great  discretion  is  permitted.  The 
prisoner  may  be  released  on  the  payment  of  a  fine,  or  he  may 
be  confined  to  prison.  He  may  be  confined  either  on  a  defi- 
nite sentence  or  on  an  indeterminate  sentence,  which  shall 
be  terminated  according  to  the  report  of  a  special  board  or 


sentence 


THE  PROCEDURE  OF  THE  COURTS  295 

commission.^  In  some  cases  the  judge  may  give  what  is  known 
as  a  suspended  sentence ;  that  is,  pronounce  a  definite  sentence 
but  suspend  its  operation. 

After  the  judge  has  sentenced  the  prisoner  the  clerk  makes  (h)  Execu- 
out  the  commitment  papers  and  delivers  them  to  the  proper  ^'°° 
officer,  who  takes  possession  of  the  person  of  the  prisoner  and 
disposes  of  him  according  to  the  terms  of  the  sentence. 

2.    Civil  Cases,  Common-Law  Procedure 

The  essential  difference  between  a  criminal  case  and  a  civil  civii cases: 
case  is  that  in  the  first  the  state  prosecutes  and  the  guilty- 
person  is  punished,  while  in  the  second  a  private  individual 
seeks  to  maintain  his  rights  and,  if  successful,  is  awarded 
damages.  Stripped  of  technicalities  and  without  attempting 
to  cover  all  kinds  of  civil  action  the  procedure  in  civil  suits 
includes  the  following  steps: 

The  prcBcipe  is  the  filing  of  a  request  that  a  writ  be  issued  (0  The 
under  the  authority  of  the  court.    This  writ — and  there  are  orTg^na^i 
many  kinds — is  directed  to  the  sheriff  of  the  county  where  ^"'^ 
the  court  has  jurisdiction  and  instructs  him  to  summon  the 
defendant  to  appear  in  court  to  defend  his  action. 

The  defendant,  either  in  person  or  by  his  attorney,  appears  (2>  Appear- 
in  court.    In  case  he  does  not  immediately  offer  satisfaction 
or  neglects  the  summons  of  the  writ,  judgment  against  him 
may  be  given  in  his  absence. 

The  pleadings  were  originally  oral  altercations  in  open  court  (3)  The 
before  the  judge  as  moderator.  In  most  cases  today  the  plead- 
ings are  conducted  in  writing  and  presented  to  the  court.  The 
whole  object  of  the  various  pleas  is  to  present  a  single  issue. 
The  pleadings  begin  with  the  declaration  of  the  plaintiff,  which 
is  a  formal  statement  of  the  facts  upon  which  he  bases  his 
claim.  Two  courses  are  open  to  the  defendant :  he  may  deny 
the  facts  stated  in  the  declaration  (this  is  a  plea)  or  he  may 
claim  that  even  if  the  facts  as  stated  are  true  they  constitute 
no  ground  for  recovery.  The  plea  may  be  of  two  sorts :  either  a 
traverse  (that  is,  a  denial  of  the  truth  of  the  facts)  or  a  plea  of 

^See  page  181. 


2  96      STATE  AND  MUNICIPAL  GOVERNMENT 

confession  and  avoidance  (that  is,  an  admission  of  the  truth  of 
the  facts,  but  a  submission  of  new  facts  to  justify  or  alter  the 
original  claim  set  up  by  the  plaintiff).  The  defendant,  how- 
ever, has  another  course  open  to  him  which  is  known  as  a 
demurrer.  By  this  the  defendant  admits  the  truth  of  the  facts, 
but  claims  that  the  law  does  not  allow  the  remedy  asked  for. 
A  plea  presents  a  question  of  fact,  a  demurrer  a  question  of 
law.  After  the  defendant  has  filed  his  answer  the  plaintiff  may 
traverse  or  plead  to  the  facts  submitted  by  the  defendant,  or 
he  may  demur.  This  process  may  continue  until  a  single  issue 
has  been  reached.  In  states  where  the  old  common  law  pre- 
vails, unchanged  by  statute,  these  pleas  may  continue  almost 
indefinitely.  In  most  states,  however,  there  is  a  limit  fixed  by 
statute.  Often  the  steps  are  limited  to  two — the  plaintiff's 
complaint  and  the  defendant's  answer.  Whenever  this  stage  is 
reached  the  case  is  ready  for  trial. 

(4)  The  The  trial  of  a  civil  case  before  a  jury  is  quite  similar  to  the 

steps  described  in  the  previous  section  on  criminal  cases,  with 
certain  important  differences.  Many  civil  cases  involve  the 
ascertaining  of  damages.  In  fact,  a  civil  suit  ordinarily  results 
in  an  award  of  damages.  These  the  jury  must  determine.  If 
the  plaintiff  has  obviously  failed  to  make  out  his  case,  the 
judge  may  take  the  case  from  the  jury ;  that  is,  dismiss  the 
complaint.  Sometimes,  however,  all  the  evidence  presented 
tends  to  only  one  conclusion,  and  the  judge  may  direct  the 
jury  to  bring  in  a  verdict  for  one  party  or  the  other.  All  that 
remains  for  the  jury  to  do  in  this  instance  is  to  determine  the 
amount  of  damages. 

(5)  Verdict        In  arriving  at  their  verdict^  juries  pursue  the  same  formality 
ment  in   civil   cases  which   has   been   described   in   criminal   cases. 

The  verdict  is  then  presented  to  the  court.  It  is  not  a  sentence, 
but  a  determination  of  the  rights  of  parties  and  an  award  of 
damages.  In  order  to  obtain  satisfaction  the  plaintiff  may  be 
obliged  to  take  one  more  step. 

(6)  Execu-        If  the  defendant  does  not  voluntarily  comply  with  the  award, 

— that  is,  pay  the  money  damages  decreed  by  the  jury, — the 

plaintiff  or  his  attorney  must  request  the  court  to  issue  a  writ 

iSomc  states  allow  majority  verdicts  in  civil  cases. 


THE  PROCEDURE  OF  THE  COURTS     297 

of  execution.  This  is  a  writ  directed  to  the  sheriff  or  some 
deputy,  commanding  him  to  levy  upon  and  sell  enough  of  the 
property  of  the  defendant  to  satisfy  the  awards.  If  the  de- 
fendant be  a  man  without  property,  or  if  he  has  succeeded  in 
concealing  or  transporting  his  property  to  another  jurisdiction, 
execution  may  be  impossible  or  it  may  require  the  filing  of  the 
judgment  in  the  jurisdiction  where  the  property  is  found. 

By  the  agreement  of  both  parties  a  civil  case  may  be  tried  Trial  of  a 

civil  esse 

before  a  judge  without  the  assistance  of  the  jury.  In  this  case  without 
the  procedure  is  much  the  same  except  that  the  judge  hears  •'"'^^ 
and  determines  all  questions,  both  of  law  and  of  fact.  In  some 
cases  which  are  exceedingly  complicated  and  technical  the 
judge  may  appoint,  on  the  agreement  of  both  parties,  a  master 
or  referee  who  hears  the  testimony  and  evidence  and  makes  a 
preliminary  finding,  which  he  files  with  the  judge.  The  judge 
then  goes  over  the  record  and  testimony  and  makes  his 
final  decision. 

3.   Equity  Procedure 

There  are  five  steps  ordinarily  necessary  in  equity,    Proce-  Equity 
dure  in  equity  starts  with  a  bill  of  complaint  in  which  the  ^[^'^Biii^of 
plaintiff  calls  the  attention  of  the  court  to  certain  facts  and  complaint 
prays  the  court  to  summon  the  defendant  or  respondent  to  a 
hearing  and  to  grant  relief. 

A  subpoena  is  a  writ  directed  to  the  defendant,  requiring  him  f2)  subpoena 

.        .  1  1  r   1        •  1      cind  appear- 

to  appear  at  a  certain  time  upon  the  penalty  of  having  the  ance 

case  decided  in  his  absence  as  if  he  had  confessed  the  truth  of 

the  complaint.    Appearance  is  the  appearance  of  the  respondent 

either  in  person  or  by  attorney. 

Pleadings  in  equity  are  much  less  formal  than  those  in  law.  (3)  Piead- 
The  respondent  may  file  a  disclaimer  (that  is,  deny  that  he  '°^^ 
has  any  interest  in  the  matter)  or  he  may  demur.    He  may 
select  some  particular  fact  upon  which  he  wishes  to  have  the 
case  determined.    In  such  instance  he  files  a  plea.    He  may 
make  a  general  denial,  which  is  known  as  an  answer. 

A  case  in  equity  is  not  heard  before  a  jury,  but  before  the  (4)  Hearing 
judge  alone,  and  the  trial  is  known  as  a  hearing.    The  judge, 
however,  may  summon  a  jury  and  submit  such  questions  of 


2  98      STATE  AND  MUxNICIPAL  GOVERNMENT 


(5)  A  decree 
and  its 
enforcement 


Appellate 
courts 


Powers  of 
appeal  on 
a  writ 
of  error 
because  of 
faulty  de- 
cisions of 
lower  court 


fact  to  it  as  he  sees  fit.  This  is  known  as  an  "issue  out  of 
chancery"  and  is  really  the  use  of  the  common-law  court  by 
the  court  of  equity  for  this  special  finding  of  fact. 

As  has  been  shown,  a  judgment  in  law  is  a  mere  statement 
of  the  rights  of  the  parties.  A  decree  in  equity  goes  further 
and  directs  a  party  to  perform  or  to  cease  from  performing 
some  specific  act  in  order  that  justice  may  be  done.  The  exe- 
cution of  a  judgment  in  law  depends  upon  the  property  of  the 
defendant.  In  equity  the  defendant  is  guilty  of  contempt  of 
court  and  may  be  punished  for  such  if  he  neglects  to  obey  the 
decree,  but  not  if  he  merely  fails  from  financial  inability  to  pay 
a  money  decree.^ 

4.   Appeals 

The  right  of  appeal  is  more  common  and  much  more  widely 
used  in  the  United  States  than  in  England.  Appeals  may  be 
taken  from  any  court  of  first  instance,  sitting  without  a  jury, 
on  questions  either  of  law  or  of  fact.  In  like  manner,  appeals 
both  on  questions  of  law  and  fact  may  be  taken  from  some  of 
the  county  courts  to  courts  of  higher  jurisdiction.  It  thus 
happens  that  some  courts  sit  both  as  courts  of  first  instance 
and  as  appellate  courts.  The  term  "appellate  court,"  however, 
is  generally  understood  in  a  more  restricted  sense.  It  is  used 
to  describe  those  courts  which  pass  upon  questions  of  law  that 
have  arisen  in  a  decision  of  a  case  in  other  courts. 

A  case  may  be  carried  to  an  appellate  court  upon  a  writ  of 
error.  This  alleges  that  the  judge  of  the  lower  court  has  de- 
cided some  points  contrary  to  law.  During  almost  any  trial  the 
attorneys  are  constantly  making  objections  to  the  procedure, 
and  the  judge  is  forced  to  rule  upon  these  objections.  In 
case  his  ruling  is  questioned  by  one  side,  it  notes  an  exception ; 
that  is,  it  gives  notice  that  it  will  reserve  the  right  to  appeal 
the  case  on  the  ground  that  the  judge  has  erred  and  wrongfully 

^The  machinery  of  a  court  of  equity  is  better  fitted  than  that  of  a 
common-law  court  to  handle  such  complicated  matters  as  winding  up 
partnership  affairs  and  distributing  the  assets,  settlinp;  larpe  estates,  and 
clearing  up  other  involved  accounts  and  business  relations.  Executors  and 
other  trustees  often  bring  chancery  suits  to  aid  them  in  administering 
their  trusteeships. 


THE  PROCEDURE  OF  THE  COURTS  299 

decided  the  point  to  which  it  objected.  These  exceptions  may 
be  taken  at  almost  any  stage  of  the  trial — from  the  indictment 
to  the  judge's  charge  in  criminal  cases — and  to  any  ruling  the 
judge  may  have  made  in  civil  cases.  When  the  case  is  brought 
to  the  appellate  court  on  a  writ  of  error  it  is  the  duty  of  the 
court  to  decide  the  point  of  law.  If  the  original  ruling  is 
upheld,  the  judgment  of  the  lower  court  is  affirmed ;  otherwise 
the  case  may  be  sent  back  for  retrial.  In  some  cases,  however, 
where  the  point  of  law  is  fundamental  and  the  error  of  great 
importance,  the  appellate  court  may  dismiss  the  case  or  may 
direct  the  lower  court  to  enter  judgment  according  to  the  decision 
in  the  appellate  court. 

Another  ground  of  appeal  may  be  that  the  verdict  is  contrary  other 
to  the  weight  of  evidence.  In  cases  of  this  sort  the  entire  fppea^  ° 
record  of  the  trial  in  the  lower  court,  including  the  stenographic 
reports  of  the  evidence  taken  for  the  purpose,^  is  transferred 
to  the  upper  court,  and  the  evidence  is  there  carefully  reviewed 
by  the  judges.  If  the  judges  are  convinced  from  a  careful 
examination  that  the  verdict  is  contrary  to  the  evidence  pre- 
sented, they  may  send  back  the  case  for  retrial  or  even  dismiss 
it,  or  order  the  appropriate  judgments  to  be  entered.  Another 
ground  of  appeal  is  put  forward  because  of  the  discovery  of 
new  evidence.  The  appellate  court,  however,  must  be  con- 
vinced that  the  newly  discovered  evidence  is  vital  to  the  case 
and  that  it  might  have  altered  the  verdict  originally  given. 

When  an  appellate  court  remands  a  case  for  retrial,  both  Effects  of 
parties  are  obliged  to  go  to  the  expense  and  discomfort  of  *^^^^  ^ 
prosecuting  and  defending  the  case  anew,  and  the  party  losing 
may  once  again  appeal  the  case  with  the  possibility  that  a 

lAll  evidence  in  equity  suits  except  in  issues  out  of  chancery,  which 
are  tried  by  common-law  methods,  must  be  reduced  to  writing,  and 
forms  a  part  of  the  official  record  of  the  case.  In  common-law  actions 
the  evidence  is  oral  and  not  usually  officially  recorded.  Either  party 
takes  stenographic  reports  at  his  own  expense  and  uses  them  on  appeals 
involving  questions  of  fact.  Affidavits  (that  is,  sworn  statements  made 
without  opportunity  for  the  opponent  to  cross-examine)  are  not  ad- 
missible as  evidence,  but  depositions  (that  is,  testimony  taken  out  of 
court  with  opportunity  for  cross-examination  and  in  conformity  with 
certain  other  requirements)  are  admissible  even  in  common-law  trials. 
Practically  all  testimony  in  equity  suits  consists  of  depositions. 


300      STATE  AND  MUNICIPAL  GOVERNMENT 

second  retrial  may  be  required.  This  process  may  go  on  al- 
most indefinitely.  Several  disadvantages  result  from  this  prac- 
tice. It  favors  the  wealthy  suitor  who  has  money  and  can 
procure  counsel  to  prosecute  appeals  at  the  expense  of  the 
poorer.  Thus  it  is  undemocratic.  It  greatly  adds  to  the  law's 
delay ;  that  is,  appeals  delay  the  final  administration  of  justice. 
Every  citizen  has  the  right  to  be  heard  before  judgment,  and 
all  controversies  involving  more  than  a  certain  small  amount 
(fixed  in  each  state,  but  usually  about  twenty  dollars)  must  be 
decided  by  a  jury  if  either  party  demands  it.  These  invaluable 
rights  involve  an  expenditure  of  time,  but  few  would  be  willing 
to  sacrifice  these  rights  in  order  to  expedite  the  decision  of  a 
case.  It  is  obviously  proper  that  appeals  should  be  allowed 
and  that  errors  should  be  corrected  in  order  that  justice  may 
be  done.  No  one  should  criticize  the  delay  which  results  from 
the  appeal  of  a  case  on  an  important  point  of  law  so  that  a 
vital  error  might  be  corrected  or  that  new  and  important  evi- 
dence might  be  introduced.  But  appeals  are  often  prosecuted 
on  unimportant  grounds,  and  some  appellate  courts  remand  a 
case  for  retrial  where  the  error  alleged  is  an  unimportant  one 
and  not  vital  to  the  determination  of  the  case.  Similar  unim- 
portant errors  in  the  retrial  of  the  case  may  offer  the  oppor- 
tunity for  another  appeal  and  the  possibility  for  another  retrial. 
Thus,  Governor  Baldwin  cites  the  case  of  a  brakeman  injured 
on  a  New  York  railroad  in  1882.^  In  1884,  as  a  result  of  a 
suit  against  the  company,  he  recovered  damages  to  the  amount 
of  $4000.  In  1886  this  judgment  was  reversed  on  appeal.  On 
a  new  trial  he  got  a  verdict  for  $4900.  This  was  appealed  to 
two  courts  successively — the  first  court  affirmed  that  judg- 
ment, while  the  second  reversed  it.  In  1889  the  company  won 
the  third  trial.  The  brakeman  then  made  two  appeals.  In 
1894  the  intermediate  appellate  court  decided  against  him. 
The  court  of  last  resort  in  1897  decided  for  him.  At  a 
fourth  trial  the  brakeman  obtained  a  verdict  for  $4500.  The 
company  then  appealed  with  success.  A  fifth  trial  gave  the 
brakeman  a  verdict  of  $4900,  but  this  was  set  aside  on  appeal. 

15.   E.   Baldwin,  The   American   Judiciary,   chap,   xxiv,   "The   Law's 
Delays,"  pp.  366-367. 


THE  PROCEDURE  OF  THE  COURTS  301 

A  sixth  trial  followed,  with  the  same  results,  and  the  company 
again  won  the  appeal.  In  1902  a  seventh  trial  took  place  which 
resulted  in  a  verdict  of  .S4500.  This  the  company  appealed, 
but  was  defeated.  Such  an  example,  with  seven  lawsuits  and 
seven  appeals,  is  extraordinary  in  American  jurisprudence,  but 
the  case  is  cited  to  show  the  possibilities  of  the  appellate  system. 

Because  of  delays  and  retrials  it  has  sometimes  been  sug-  suggested 
gested  that  the  right  of  appeal  be  restricted.  This  would  be 
extremely  difficult  and  perhaps  unfortunate.  It  would  result  in 
the  possibility  of  an  uncorrected  error  involving  injustice.  One 
suggestion  which  is  sometimes  urged  is  that  no  appeal  should 
be  prosecuted  without  the  assent  of  the  trial  judge.  This  has 
little  to  recommend  it.  It  is  on  account  of  the  errors  of  the  trial 
judge  that  the  case  is  appealed,  and  it  is  to  be  doubted  whether 
such  a  judge  would  be  in  an  unprejudiced  position  to  grant 
or  withhold  the  right  of  appeal.  Another  suggestion,  of  some- 
what more  merit,  is  that  no  appeal  should  be  prosecuted  with- 
out the  assent  of  one  of  the  judges  of  the  appellate  court.  This 
also  is  open  to  objection.  The  judge  of  the  appellate  court 
would  either  be  obliged  to  make  an  exhaustive  examination 
and  hold  hearings,  which  in  themselves  would  amount  to  the 
process  of  appeal,  or  else  he  would  be  forced  to  grant  or  with- 
hold his  permission  from  a  cursory  examination  and  an  ex-parte 
hearing.    Neither  process  is  satisfactory. 

5,    Power  of  the  Courts  to  declare  Statutes 
Unconstitutional 

Appellate  courts,  and  lower  courts  as  well,  possess  what  is  The  judicial 
known  as  the  judicial  veto  over  state  legislation.^  This  is  ex- 
ercised by  the  United  States  Supreme  Court  with  regard  to 
state  legislation.  It  is  implicitly  or  explicitly  granted  to  the 
highest  state  courts  by  the  constitutions  of  the  several  states 
and  is  everywhere  assumed  by  the  appellate  courts.  Theoreti- 
cally it  is  a  judicial  function  where  all  that  the  judge  does  is 

^See  excellent  accounts  by  J.  M.  Mathews,  Cyclopedia  of  American 
Government,  Vol.  Ill,  p.  397,  and  A.  N.  Holcombe,  State  Government  in 
the  United  States,  pp.  3SS-381. 


302      STATE  AND  IMUNICIPAL  GOVERNMENT 

to  determine  whether  there  is  a  conflict  of  laws  or,  in  other 
words,  whether  the  state  statute  is  in  conflict  with  the  state 
constitution  or  with  some  federal  act,  treaty,  or  the  Federal 
Constitution.  Practically,  however,  this  function  is  largely 
political.  The  construction  of  a  state  constitution  is  a  dif- 
ferent process  from  an  application  of  a  state  law.  The  terms 
of  the  constitution  are  more  general  and  are  susceptible  of 
various  interpretations  depending  in  part  upon  the  political 
bias  of  the  judge.  In  the  early  days  of  the  Constitution  this 
power  was  rarely  used  and  then  chiefly  to  protect  the  courts 
against  the  usurpation  of  their  powers.  Since  the  Civil  War, 
however,  it  has  been  used  increasingly  by  both  the  federal 
and  the  state  courts,  not  so  much  to  protect  themselves  as 
because  of  defective  legislation  or  of  legislation  in  conflict  with 
the  due-process  and  equal-protection  clauses  of  the  Federal 
Constitution.  Both  of  these  clauses,  as  interpreted  by  the 
courts,  prevent  or  forbid  the  passage  of  any  law  by  the  legis- 
lature which  the  courts  think  is  unreasonable.  This  "rule  of 
reason,"  as  applied  by  the  courts,  has  at  various  times  subjected 
both  the  courts  of  the  United  States  and  those  of  the  various 
states  to  severe  criticism. 

6.   Judicial  Control  of  Administration 

Judicial  re-  Administrative  officials  derive  their  powers  partly  from  the 
lo-^erli^^  constitutions  of  the  states  and  partly  from  state  statutes.^  In 
administra-  reviewing  the  acts  of  administrative  officers  the  courts  of  neces- 

tive  officers  " 

sity  must  determine  the  authority  under  which  the  officer  acts. 
In  other  words,  they  must  determine  the  constitutionality  of 
the  statute.  Two  general  limitations  are  enforced  by  the  courts. 
The  legislature  may  not  delegate  legislative  powers  to  the 
administrative  officers.  This  means  that  the  legislature  must 
determine  by  statute  the  principles  upon  which  the  administra- 
tive officers  ought  to  act.  For  example,  an  act  allowing  a 
public-service  commission  to  regulate  the  rates  charged  by  the 

1  F.  J.  Goodnow's  "Principles  of  the  Administrative  Law  of  the  United 
States"  is  the  most  authoritative  treatment  of  this  subject.  See  also 
A.  N.  Holcombc,  State  Government  in  the  United  States,  pp.  381-391. 


THE  PROCEDURE  OF  THE  COURTS     303 

railroads  would  be  held  to  be  an  unconstitutional  delegation 
of  legislative  power.  If,  however,  the  legislature  enact  that 
the  commission  should  prescribe  just  and  reasonable  rates,  this 
would  probably  be  considered  a  sufficient  rule  for  the  commis- 
sion to  follow.  In  like  manner,  the  legislature  may  not  delegate 
judicial  power  to  administrative  officers  nor  administrative 
power  to  the  judiciary.  These  principles  have  been  long  in 
existence,  but  they  have  been  more  frequently  invoked  in  recent 
years.  The  reason  for  this  is  to  be  found  in  the  manifold 
activities  of  state  administration  and  in  the  impossibility  of 
regulating  all  phases  of  state  administration  by  general  statutes. 
Countless  commissions  are  created  to  perform  specific  functions 
which,  while  not  technically  legislative  or  judicial,  for  practical 
purposes  involve  the  use  of  both  functions.  In  reviewing  the 
decisions  of  these  commissions  the  court  exerts  a  centralizing 
and  harmonizing  power.  Such  review,  however,  places  too 
great  a  burden  upon  the  courts  and  one  which  they  are  hardly 
fitted  to  assume.  The  commissions  themselves  were  created 
because  the  legislature  felt  itself  unable  to  deal  with  such 
technical  problems  and  desired  the  opinions  of  experts.  The 
judges,  however  expert  they  may  be  in  law,  are  not  universal 
experts  in  all  the  fields  touched  by  administrative  regulation. 

From  the  time  of  Marshall's  famous  decision  in  the  case  of  judiciaicon- 
Marbury  v.  Madison  (1803)  the  courts  have  made  a  distinc-  acts^o/ad- 
tion  between  ministerial  and  discretionary  acts.    A  ministerial  ministrative 
act  has  been  held  to  be  one  which  leaves  the  administrative  Ministerial 
officer  no  discretion.     Acts  of   this   sort  are  subject   to   the  ^^^^ 
strictest  judicial  control.   The  courts  may  refuse  to  give  legal 
effect  to  such  acts  because  they  are  unauthorized  by  either 
the  state  constitution  or  state  statutes ;  or  the  courts  may  by 
injunction  or  mandamus  command  the  administrative  officer 
to  perform  or  refrain  from  performing  such  an  act.    Discre-  Discretion- 
tionary  acts,  on  the  other  hand,  are  administrative  acts  which  ^^ 
may  or  may  not  be  performed  according  to  the  discretion  of 
the  administrative  officer.    In  general,  the  courts  will  not  review 
such  an  act,  particularly  if  it  is  a  political  matter,  and  they 
have  held  that  the  remedy  for  wrongful  discretionary  acts  is 
political  rather  than  legal.    It  must  be  admitted,  however,  that 


304      STATE  AND  MUNICIPAL  GOVERNMENT 

the  line  of  distinction  is  not  always  clear,  and  the  courts  are 
not  always  absolutely  consistent  in  enforcing  this  distinction. 
As  Professor  Holcombe  has  well  said:  "The  habit  of  looking 
to  the  courts  for  the  final  determination  of  important  adminis- 
trative questions  does  not  solve  the  problem.  It  merely  shifts 
its  location."  He  holds  truly  that  the  activity  and  much  of  the 
criticism  of  the  state  courts  in  the  attempt  to  control  adminis- 
tration arises  from  administrative  weakness,  not  from  excessive 
judicial  strength.  His  conclusion  is  also  significant.  "The  most 
promising  plan  for  correcting  the  defects  of  the  existing  system 
is  to  increase  the  efficiency  of  the  administrative  branch  of  state 
governments.  This  can  be  done  only  by  the  further  reform 
of  the  methods  of  selecting  administrative  officers  and  by  the 
further  centralization  and  integration  of  state  administration."^ 


Action  of 
appellate 
courts 


Action  of 
juries 


7.    The  Courts  as  Agents  of  Self-Government 

The  division  of  the  powers  of  government  into  the  executive, 
legislative,  and  judicial,  which  has  been  established  by  the  state 
constitutions,  gives  the  final  determination  to  the  courts.  As 
has  been  pointed  out,  the  appellate  courts  control  legislative 
action  through  the  judicial  veto  when  a  state  statute  is  held  to 
conflict  with  the  state  or  Federal  constitution.  The  action  of 
every  administrative  officer  may  be  subject  to  judicial  review 
within  the  limits  just  discussed.  Only  an  amendment  to  the 
state  constitution  can  reverse  the  decision  of  the  highest  court 
of  a  state.-  When  it  is  remembered  that  the  judiciary  in  the 
majority  of  the  states  is  chosen  directly  by  the  people,  it  can 
be  appreciated  to  what  limits  popular  control  extends  over  state 
action  by  means  of  the  judiciary. 

In  another  way,  however,  and  in  one  more  frequently  in- 
voked, the  action  of  the  courts  becomes  an  instrument  of  self- 
government.    As  De  Tocqueville  pointed  out : 

The  institution  of  the  jury  places  the  real  direction  of  society  in 
the  hands  of  the  governed,  .  .  .  and  not  in  that  of  the  government. 

'  State  Government  in  the  United  States,  p.  391.  See  also  the  dkcus- 
sion  of  the  state  administrative  reform,  pp.  163-167. 

2 An  exception  should  be  noted  where  the  recall  of  judicial  decisions 
is  in  vogue. 


THE  PROCEDURE  OF  THE  COURTS  305 

Force  is  never  more  than  a  transient  element  of  success,  and  after 
force  comes  the  notion  of  right.  .  .  .  The  true  sanction  of  political 
laws  is  to  be  found  in  penal  legislation ;  and  if  that  sanction  be  want- 
ing, the  law  will  sooner  or  later  lose  its  cogency.  He  who  punishes 
the  criminal  is  therefore  the  real  master  of  society.^ 

The  practical  application  of  this  principle  has  been  discussed 
in  detail  in  this  chapter.  The  power  and  significance  of 
the  action  of  the  grand  jury  has  been  discussed.  The  action 
of  the  petit  jury  has  been  described  and  criticized.  It  should 
be  remembered,  however,  that  the  criticisms  of  the  action  of 
the  petit  jury  are  chiefly  directed  against  the  jury  as  a  judicial 
instrument  in  performing  the  specific  function  which  was  as- 
signed to  it  by  theory.  As  instruments  of  self-government, 
juries,  both  by  their  refusal  either  to  indict  an  offender  or  to 
convict  one  already  indicted,  represent  the  action  of  public 
opinion  in  determining  the  method  and  application  of  the  law. 
As  judicial  instruments  they  may  fail,  but  as  instruments  of 
government  they  give,  on  the  whole,  great  satisfaction. 

1  Quoted  by  A.  N.  Holcombe,  State  Government  in  the  United  States, 
p.  72. 


PART  IV 
COUNTY  AND  TOWN  GOVERNMENT 


CHAPTER  XVI 

THE  EVOLUTION  OF  LOCAL  GOVERNMENT  IN  THE 

UNITED  STATES 

Local  government  in  the  United  States  was  -a  development  The  English 
from  English  institutions.    At  the  time  of  the  founding  of  the  lo^cafgov- 
colonies  these  institutions  of  local  government  had  considerable  ^™"^JJ^g*° 
vitality.    The  political  struggles  of  the  Stuarts  were  largely  for  states 
the  purpose  of  getting  control  of  the  central  government.^ 
Local  institutions  were  left  to  a  large  extent  in  the  hands  of 
the  local  leaders.    Many  of  these  emigrated  to  America  and 
reestablished  here  the  institutions  with  which  they  were  familiar 
and  from  which  was  developed  the  modern  system  of  local 
government.    The  two  English  institutions  of  local  government 
which  had  most  effect  in  the  development  of  local  government 
in  the  United  States  were  the  county  and  the  parish  or  the  town. 

The  English  county  grew  out  of  the  old  Saxon  shire,  which  The  English 
originally  had  a  considerable  degree  of  self-government.  Al- 
though the  importance  of  the  shire  courts  declined  and  the 
power  of  the  royally  appointed  sheriffs  increased,  the  counties 
retained  to  a  large  degree  the  administrative  control  of  their 
own  affairs.  This  Was  exercised  largely  through  the  justices  TheEngiish 
of  the  peace,  of  whom  there  were  from  twenty  to  sixty  for  each  the  peace 
county.  These  justices  were  usually  men  of  good  family,  but 
not  necessarily  learned  in  the  law.  Their  duties  were  various ; 
even  as  early  as  1603  there  were  nearly  three  hundred  statutes 
dealing  with  their  functions.  Aside  from  administration  the 
justices  had  judicial  duties.  At  quarter  sessions  they  sat  as  a 
court,  having  criminal  jurisdiction  over  all  but  the  most  petty 
and  the  most  serious  crimes.  This  court,  moreover,  had  impor- 
tant administrative  duties  in  the  care  of  the  roads,  bridges, 
county  property,  and  in  the  levying  of  county  taxes.    Thus, 

1  Edward  Channing,  History  of  the  United  States,  Vol.  I,  p.  421. 

309 


310      STATE  AND  MUNICIPAL  GOVERNMENT 

although  the  county  had  no  legislative  autonomy  it  did  possess, 
to  a  large  degree,  the  control  of  its  own  administrative  and 
judicial  affairs. 
The  English  The  English  parish  or  town  was  the  smallest  administra- 
town''  °^  tive  unit  and  originally  it  had  few  civil  duties,  its  chief  func- 
tions being  ecclesiastical.  With  the  separation  from  the  Roman 
Church,  however,  certain  civil  functions  were  given  to  it ;  chief 
among  these  was  the  care  of  the  poor,  for  which  taxes  or  rates 
were  levied.  The  affairs  of  the  parish  were  under  the  control 
of  a  vestry  meeting,  which  might  be  attended  by  all  land- 
holders in  the  parish.  This  meeting  elected  the  parish  officers 
and  appointed  a  committee  to  advise  them.  Not  merely  was 
the  parish  responsible  for  the  support  of  the  poor,  but  it  was 
obliged  to  furnish  its  quota  of  armed  men  at  the  call  of  the 
crown.  Taxes  or  rates  were  also  levied  to  provide  for  armor 
and  to  support  the  soldiers  sent  from  the  parish.  Thus,  through 
the  justices  of  the  peace  in  the  county  and  the  vestry  in  the 
parishes,  there  was  considerable  autonomy  in  English  local 
government.  Gradually  this  was  diminished  by  the  encroach- 
ments of  the  central  government,  but  in  the  American  colonies 
the  original  powers  were  reproduced. 
Beginnings  At  the  Settlement  of  the  colonies  there  was  no  distinction 
government  between  the  local  and  the  central  government  in  any  colony.^ 
in  America:  g^^  ^g  g^^j^  ^g  immigration  increased  the  population  the  area  of 
settlement  was  extended,  and  some  provision  had  to  be  made 
for  the  government  of  the  community  at  a  distance  from  the 
original  settlement.  This  growth  brought  about  the  develop- 
ment of  three  types  of  local  government. 

In  the  Southern  colonies,  particularly  in  Virginia,  the  county 
became  the  most  important   unit  in  local  government.    The 

^Sec  H.  G.  James,  Local  Government  in  the  United  States,  chap.  ii. 
J.  A.  Fairlie,  Local  Government  in  Counties,  Towns,  and  Villages,  gives 
an  excellent  survey  of  the  origin  and  development  of  local  government 
in  the  United  States.  In  common  with  others  1  have  freely  used  this 
for  the  material  in  this  chapter.  W.  B.  Munro,  Government  of  the  United 
States,  chap,  xxvii,  presents  an  excellent  summary  of  the  history  of  local 
government  in  the  United  States.  For  a  more  extended  treatment  see 
G.  E.  Howard,  An  Introduction  to  the  Local  Constitutional  History  of 
the  United  States. 


EVOLUTION  OF  LOCAL  GOVERNMENT    311 

officers  and  the  machinery  of  administration  closely  resembled  (i)  The 
those  of  the  English  county.  There  was  no  general  assembly  of  inThe^  ^^^^ 
the  freeholders  for  political  purposes ;  those  who,  because  of  c*'i"n^^'^'^ 
their  freehold  property,  were  qualified  to  vote  elected  delegates 
to  the  general  colonial  assembly,  but  took  no  part  directly  in 
the  management  of  the  affairs  of  the  county.  The  administra-  — 
tive  officers  of  the  county  included  a  lord  lieutenant,  a  sheriff, 
and  justices  of  the  peace.  The  duties  of  the  lord  lieutenant  and 
the  sheriff  were  analogous  to  those  of  their  English  prototypes, 
while  the  county  courts  were  somewhat  similar  to  the  county 
courts  in  England  and  were  the  most  important  and  almost  the 
sole  institution  of  local  government.  They  held  monthly  meet- 
ings at  which  they  exercised  a  limited  criminal  jurisdiction  but 
considerable  administrative  power  in  that  they  were  charged 
with  the  care  of  the  courthouse  and  the  building  of  county 
roads  and  bridges,  for  which  they  levied  a  tax.  In  course  of 
time  these  courts  became  almost  self-perpetuating  corporations, 
since  the  justices  of  the  county  suggested  to  the  governor  the 
candidates  for  lord  lieutenant,  sheriff,  and  their  fellow  justices. 
In  theory  and  practice  the  government  of  the  counties  was  un- 
democratic and  oligarchical,  but  it  is  probable  that  the  same  men 
would  have  been  chosen  for  office  had  the  freeholders  been  given 
the  right  of  election.  The  system  of  county  government  was  de- 
veloped and  retained  in  Virginia  and  the  Southern  colonies  be- 
cause of  the  nature  of  the  settlements.  There  were  few  towns  or 
communities  of  any  size.  The  plantations  were  large  and  scat- 
tered, and  each  planter  on  his  estate  assumed  many  of  the  duties 
which  were  ordinarily  performed  by  agents  of  local  government. 

There  were,  however,  smaller  units ;  namely,  the  parishes,  [The  south- 
which  had  few  duties  other  than  ecclesiastical  and  were  over- 
shadowed in  local  administration  by  the  powers  of  the  county. 
The  parishes  in  Virginia  were  controlled  by  the  vestry,  usually 
consisting  of  twelve  men  who,  like  the  justices  of  the  peace  in 
the  county,  soon  became  self-perpetuating.  With  the  vestry  were 
associated  the  churchwardens  as  their  executive  agents.  During 
colonial  times  the  Virginia  parishes  amounted  to  very  little  in 
local  government,  but  with  the  concentration  of  population  the 
parishes  began  to  assume  some  of  the  functions  of  the  town. 


312      STATE  AND  MUNICIPAL  GOVERNMENT 


(2)  The  New 
England 
town 
system 


I  The  New 

England 

counties! 


^3)  The 

mixed 

system 


In  New  England  the  other  element  of  English  local  govern- 
ment was  developed ;  namely,  the  town.  The  settlement  of 
New  England  was  in  some  instances  brought  about  by  the 
immigration  of  whole  parishes  or  congregations  with  their 
ministers.  The  economic  life  and  development  of  the  colony 
necessitated  compact  settlements;  the  colonists  were  small 
farmers  or  fishermen  or  traders ;  there  were  no  large  estates  or 
plantations.  Thus,  from  the  very  first,  town  life  was  accen- 
tuated and  the  control  of  the  affairs  of  the  town  was  in  the 
hands  of  the  town  meeting,  which  was  somewhat  similar  to  the 
meetings  of  the  open  vestries  in  England.  At  a  town  meeting 
all  the  qualified  inhabitants  of  the  town  who  had  assembled 
passed  by-laws,  made  appropriations,  and  elected  officers.  The 
most  important  officers  chosen  in  the  town  meetings  were  the 
selectmen — a  committee  of  from  three  to  thirteen  members. 
These  officers  were  the  executive  agents  of  the  town,  although 
their  powers  were  strictly  circumscribed.  In  the  first  place,  they 
were  limited  by  the  appropriations  which  were  made  by  the 
town  meeting,  and  they  had  no  independent  power  to  levy 
taxes.  In  the  second  place,  the  business  was  thoroughly  dis- 
cussed in  town  meeting  and  each  project  separately  voted. 
Therefore  the  selectmen  had  little  or  no  opportunity  to  under- 
take projects  on  their  own  account — they  were  executive 
managers  with  little  discretion.  In  every  town  a  constable  was 
chosen,  but  he  was  merely  another  agent  of  the  town  meeting. 
A  more  important  officer  was  the  town  clerk,  who  acted  as 
secretary  of  the  town  meeting  and  as  registrar  of  deeds  and 
vital  statistics. 

Every  New  England  colony  in  course  of  time  established 
some  form  of  county  government.  The  counties,  however,  in 
New  England  were  rather  judicial  districts  than  instruments 
of  local  government. 

In  the  middle  colonies  a  mixed  system  of  local  government 
developed.  In  this  region  the  towns  were  more  important  than 
the  parishes  in  the  South  and  had  a  considerable  degree  of 
autonomy.  In  New  York  State,  after  1691,  there  were  created 
elective  county  boards  of  town  supervisors  which  consisted  of 


EVOLUTION  OF  LOCAL  GOVERNMENT    313 

one  freeholder  elected  from  each  town  in  each  county  to 
supervise  the  levy  and  assessment  of  the  local  taxes  for  county 
purposes.  This  feature  was  adopted  in  the  colonies  and  later 
in  the  states  composing  this  group,  and  is  the  distinctive  mark 
of  the  mixed  system.  In  the  middle  group  the  county  was 
the  political  unit  which  elected  the  members  of  the  colonial 
legislature,  and  with  the  development  of  the  elective  principle 
for  county  officers  it  became  the  center  of  political  activity. 

Outside  of  New  England  a  third  unit  of  local  government  The  colonial 
was  found ;  namely,  the  borough.  In  England  a  borough  re-  °'^°*'^ 
ceived  its  charter  from  the  crown ;  in  America  it  was  chartered 
by  the  colonial  governor  as  the  crown's  representative.  The 
first  borough  to  receive  a  charter  was  New  York,  to  which 
Governor  Dongan  in  1686  issued  a  charter.^  The  charter  pre- 
scribed the  form  of  government,  which,  not  unlike  that  of  the 
English  borough,  consisted  in  general  of  an  executive  officer 
or  mayor  appointed  by  the  governor,  councilors  elected  by  the 
freemen,  and  aldermen  chosen  by  the  councilors.  As  in  the 
English  borough,  the  mayor,  aldermen,  and  councilors  met 
in  a  single  borough  council.  In  New  England  the  system  of 
town  government  was  so  satisfactory  that  no  town  in  those 
colonies  became  a  borough  or  a  city  before  the  Revolution.- 

The  colonists  were  fairly  well  satisfied  with  their  system  of  The 
local  government ;  they  had  as  much  control  over  their  affairs  and°iocai* 
as  did  the  people  in  England,  and  in  New  England  it  was  government 
even  greater.    Although   the  English   authorities  occasionally 
objected  to  the  creation  of  new  counties,  on  the  whole  they 
interfered  very  little  with  the  administration  of  local  affairs. 
Consequently,  after  the  Declaration  of  Independence  and  the 
formation  of  the  state  governments,  few  changes  were  made  in 
these  institutions.    None  were  necessary  in  the  towns  of  New 

^In  all  there  were  about  twenty  chartered  boroughs  in  the  colonies 
before  the  Revolution,  the  most  important  of  which  were  Albany, 
chartered  in  1686;  Philadelphia,  1691 ;  Annapolis,  1696;  Norfolk,  1736; 
Richmond,  1742;  Trenton,  1746.  W.  B.  Munro,  The  Government  of 
American  Cities,  pp.  2-3. 

-Boston  received  its  first  city  charter  in  1822,  when  its  population 
had  passed  the  40,000  mark  and  its  qualified  voters  exceeded  7000. 


314     STATE  AND  MUNICIPAL  GOVERNMENT 

England,  and  in  the  counties — both  in  New  England  and  in 
the  South — the  officials  continued  to  be  appointed,  as,  indeed, 
they  were  in  Virginia  until  well  into  the  nineteenth  century. 
In  other  states,  however,  the  county  officials  were  chosen  by 
election — generally  by  the  state  legislature,  for  the  idea  of 
direct  popular  election  did  not  commend  itself  at  first. 
Extension  Between  the  Revolution  and  1820,  settlements  were  pushed 
of  locfaf™^  out  as  far  as  the  Mississippi,  and  states  and  territories  were 
fo^the""^^"*  organized  in  this  region.  As  Professor  Fairlie  points  out,^  the 
territories  institutions  of  local  government  in  moving  westward  roughly 
followed  the  parallels  of  latitude.  Thus,  in  the  northwest  ter- 
ritory the  New  England  town  meetings  were  adopted,  although 
they  were  not  nearly  so  vigorous  as  in  the  original  states. 
Indiana  and  Ohio  adopted  the  mixed  type  of  local  government 
which  characterized  New  York  and  Pennsylvania.  Kentucky 
and  Tennessee  took  over  the  Virginia  system  of  county  govern- 
ment. The  institutions  which  were  thus  transplanted  under- 
went radical  changes.  In  all  the  frontier  settlements  the 
principle  of  popular  election  was  emphasized  and  the  govern- 
ments were  far  more  democratic.  The  doctrine  of  manhood 
suffrage  placed  the  choice  of  the  local  officials  in  the  hands  of 
the  whole  people  rather  than  in  those  of  the  taxpayers.  Pro- 
fessor Fairlie  sums  up  the  situation  in  the  middle  of  the 
nineteenth  century  as  follows : 

Thus  before  the  Civil  War  the  main  features  in  the  development 
of  local  institutions  had  been  established.  Throughout  the  country 
the  states  were  divided  into  counties,  each  with  a  considerable 
number  of  elective  offices,  but  with  important  differences  in  the  or- 
ganization of  the  fiscal  authority.  Everywhere,  too,  the  county  was 
subdivided  into  smaller  districts ;  but  these  varied  in  importance 
from  the  New  England  town,  through  the  township  of  the  Middle 
West,  to  the  election  and  judicial  precincts  in  the  South.  The  basis 
of  the  suffrage  for  local  elections  was  the  same  as  for  state  elections  ; 
and  had  been  steadily  extended  during  the  half  century  before  i860, 
until  the  general  system  was  one  where  every  free  white  male  citizen 
could  vote.'-' 

'  Local  Government  in  Counties,  Towns,  and  Villages,  p.  35. 
"Ibid,  pp    47-48. 


EVOLUTIOX  OF  LOCAL  GOVERNMENT    315 

The  framework  of  local  government  in  the  United  States  Recent  de- 
today  is  characterized  by  decentraUzation,  but  although  the  ^n^^o^caf"^^ 
forms  of  local  autonomy  are  pretty  generally  retained,  strong  government 
centralizing  tendencies  are  everywhere  seen.  State  control  or 
supervision  has  made  great  headway.  This  began  usually 
with  the  compulsory-education  laws,  by  which  the  state  made 
contributions  to  the  local  school  authorities;  with  this  finan- 
cial aid  came  the  power  of  supervision.  State  supervision, 
however,  is  rapidly  extending  into  other  fields  of  local  activi- 
ties. The  state  boards  of  health  and  poor  relief  and  charities^ 
exercise  considerable  influence,  if  not  absolute  control,  over 
the  local  authorities.  State  boards  of  assessment  and  accounts 
supervise  or  examine  the  financial  affairs  of  the  local  authori- 
ties, and  in  some  states  state  authorities  are  active  in  the 
enforcement  of  law.  The  extent  to  which  this  state  super- 
vision is  exercised  varies  in  different  regions.  In  the  South  in  the 
the  presence  of  large  negro  populations  has  led  the  state  ^°"^^ 
authorities  to  exercise  closer  supervision  and  greater  control 
in  the  interests  of  efficient  administration  of  law  and  justice. 
In  the  North  and  West  the  county  is  still  the  main  unit  of 
local  government,  although  state  control  is  active.  In  the 
Northeast  and,  to  a  lesser  extent,  in  the  West  the  concentration 
of  population  in  cities  has  brought  about  an  increase  of  incor- 
porated communities  with  varying  types  of  city  government 
which  tends  to  decrease  the  importance  and  activities  of  the 
old  township  form. 

In  spite  of  the  extension  of  state  control,  local  government  in  Extent 
the  United  States  is  more  active  and  less  under  the  control  autonomy  in 
of   the  central   authorities  than   it   is   in   any  other   country,  the  united 
This  is  not  altogether  an  unmixed  benefit.    In  many  states  the 
rural  communities,  if  left  to  their  own  devices,  entirely  un- 
supervised, fail  to  maintain  the  standard  desired  by  the  people 
of  the  state  at  large.^   School  systems  may  be  neglected,  proper 
measures  for  the  preservation  of  health  and  hygiene  ignored, 
and  the  community  may  become  not  only  a  danger  to  itself  but 
a  menace  to  the  rest  of  the  state.    In  the  same  way  and  to 
an  even  greater  degree  state  supervision  may  be  necessary 

iSee  Chapters  VIII  and  IX. 


3i6      STATE  AND  MUNICIPAL  GOVERNMENT 

for  cities.  In  most  instances,  however,  the  instinct  of  self- 
preservation  compels  the  city  to  take  proper  measures  for  the 
preservation  of  the  health  of  its  citizens,  but  in  so  doing  it  not 
infrequently  trespasses  upon  the  rights  of  other  communities. 
An  example  of  this  is  seen  in  the  disposal  of  the  sewage  of  a 
large  city  by  turning  it  into  a  river  which  flows  past  other 
cities.  More  often,  however,  the  resources  of  a  city  must  be 
guarded  against  extravagant  or  corrupt  use.  Thus  state  super- 
vision is  exercised  over  the  finances  of  a  city  by  means  of 
limitations  upon  the  tax  rate  and  debt  limits,  and  in  many 
states  public  service  commissions  have  large  power  in  deter- 
mining the  grants  of  franchises  within  the  city.  Finally,  the 
political  action  of  the  cities  is  determined  by  state  laws  and  in 
some  cities  is  subject  to  supervision  by  state  officers.^  Local 
autonomy  theoretically  fosters  local  independence  and  allows 
each  community  to  meet  its  problems  its  own  way.  Practically, 
as  has  been  seen,  complete  independence  in  local  government 
too  often  allows  the  community  to  neglect  its  duties,  and  its 
failures  react  upon  its  neighbors.  As  Professor  Munro  has 
well  said: 

The  right  of  the  individual  community  to  do  as  it  pleases,  spend 
its  own  money  as  it  may  see  fit,  and  be  a  law  unto  itself  is  surely  no 
greater  than  that  of  the  individual  citizen.  The  limits  of  liberty  in 
each  case  are  set  by  the  rights  of  others.  That  is  the  fundamental 
consideration  to  be  borne  in  mind  when  dealing  with  the  problem  of 
local  self-government. - 

'See  pages  388-3QO  and  Chapter  XXX. 

-W.  B.  Munro,  The  Government  of  the  United  States,  pp.  S44-S4S- 


CHAPTER  XVII 
THE  COUNTY 1 

General  Characteristics 

Throughout  the  state  the  largest  district  for  local  adminis-  Definition  of 
tration  is  the  county.^  A  county  is  a  territorial  division  of  the  *  '^°"°'^y 
state  and  at  the  same  time  is  a  quasi-corporation  for  the  pur- 
poses of  local  civil  administration.^  Counties  are  the  creations 
of  the  sovereign  power  within  the  states  and  may  be  erected 
without  the  consent  of  the  inhabitants.  Generally  the  con- 
stitutions of  the  states  give  the  legislatures  the  power  to  create 
counties,  but  in  absence  of  this  permission  the  legislature  may 

1  Chapters  XVII  and  XVIII  do  not  attempt  to  pive  a  full  and  ex- 
haustive treatment  of  all  the  problems  of  county  and  town  organiza- 
tion or  to  discuss  in  detail  all  the  functions  they  perform.  Many  of  the 
problems  of  county  government  are  common  to  both  the  states  and 
counties  and  have  already  been  fully  treated.  Many  of  the  functions 
of  the  county  are  state  functions,  administered  by  officials  chosen  within 
the  county;  for  example,  the  administration  of  justice,  which  is  treated 
at  length  in  Chapters  XIII,  XIV,  and  XV.  Administrative  duties  and 
functions  of  towns,  like  the  school  system  and  water  supply  and  so 
forth,  are  further  studied  in  connection  with  municipal  government  in 
Chapters  XXVII-XXX.  What  has  been  attempted  in  this  section  is  to 
give  a  brief  treatment  of  some  of  the  varieties  of  county  and  town 
organization  and  to  describe  some  of  the  features  wherein  counties  and 
towns  differ  from  states  and  cities.  More  extended  treatments  of  county 
and  town  government  are  to  be  found  in  J.  A.  Fairlie's  "Local  Govern- 
ment in  Counties,  Towns,  and  Villages,"  and  H.  G.  James's  "Local 
Government  in  the  United  States." 

2  In  Louisiana  the  similar  districts  are  known  as  parishes. 

2J.  A.  Fairlie,  Local  Government  in  Counties,  Towns,  and  Villages, 
gives  a  comprehensive  treatment  of  this  subject.  A  more  recent  sug- 
gestive discussion  is  found  in  H.  G.  James,  Local  Government  in  the 
United  States,  chaps,  iii,  iv.  The  Annals  of  the  American  Academy 
of  Political  and  Social  Science,  Vol.  XLVII,  pp.  3-278,  contains  a  series 
of  papers  on  "Types  of  County  Government,"  "Typical  Problems  in 
County  Government,"  and  "Plans  for  the  Reorganization  of  County 
Government." 

317 


31 8      STATE  AND  MUNICIPAL  GOVERNMENT 


Territorial 
character- 
istics 


Population 


Character 
of  counties 


Counties  as 
corporations 


act  without  an  express  grant.  In  some  states — for  example, 
the  North  Atlantic  states — the  power  of  the  legislature  for 
this  purpose  is  hardly  limited  by  the  state  constitutions,  but 
in  most  states  restrictions  are  imposed  upon  the  exercise  of 
this  authority. 

The  area  of  the  counties  in  the  different  states  shows  great 
variation.  The  smallest  county^  is  Bristol,  Rhode  Island, 
covering  24  square  miles ;  at  the  other  extreme  San  Bernardino 
County,  California,  covers  more  than  20,000  square  miles.  The 
average  area  would  be  somewhat  over  1000  square  miles,  but 
the  most  usual  areas  are  between  400  and  650  square  miles.  In 
some  states  the  constitution  prescribes  a  limit  for  the  area  of 
the  county,  the  most  usual  figures  set  being  400  square  miles. 

The  counties  vary  extremely  in  population.  The  most  popu- 
lous is  New  York  County,  New  York,  with  a  population  of 
more  than  2,000,000;  at  the  other  extreme,  Cochran  County, 
Texas,  has  only  65  inhabitants.  The  average  population  is 
more  than  30,000,  and  the  medium  population  about  20,000. 
There  are,  moreover,  important  variations  with  respect  to 
population  in  the  different  sections  of  the  country.  In  ISIassa- 
chusetts  eight  of  the  fourteen  counties  have  a  population  of 
more  than  100,000  each,  and  in  the  North  Atlantic  group  of 
states  about  half  the  counties  are  over  50,000.  In  the  Southern 
states  the  majority  of  the  counties  have  a  population  of  from 
5000  to  20,000,  while  in  the  Western  states  about  two  thirds 
of  the  counties  have  less  than  10,000  inhabitants. 

The  vast  majority  of  the  counties  are  exclusively  rural  in 
character.  Even  in  most  counties  which  contain  cities  the  rural 
population  predominates.  In  a  few  counties,  however,  a  single 
city  contains  the  bulk  of  the  population,'-"  and  in  some  instances 
the  boundaries  of  the  city  and  county  are  the  same.' 

Counties  in  the  United  States  are  known  as  quasi-corpora- 
tions, but  have  less  power  than  municipal  corporations.  A 
county  may  sue  and  be  sued  in  the  courts  on  contracts,  but  in 


1  Excluding  the  cities  in  Virginia  which   have  county   orRanization. 
2 For  example,  Buffalo,  Chicago,  Cincinnati,  Cleveland,  and  New  York. 
•Tor  example,  Hallimore.  Boston,  Denver,  New  Orleans,  Philadelphia, 
San  Francisco,  St.  Louis,  and  eighteen  cities  of  Virginia. 


THE  COUNTY  319 

general  it  is  not  liable  for  damages  due  to  negligence.  The  coun- 
ties may  make  contracts  to  accomplish  the  purposes  for  which 
they  were  authorized,  but  in  most  states  their  power  to  con- 
tract indebtedness  is  limited  by  the  provisions  of  the  state 
constitutions.  In  general,  the  corporate  powers  of  the  county 
are  secondary  and  incidental  to  its  governmental  functions.^ 
Thus  the  courts  have  said  that  the  counties  "exist  only  for 
the  purpose  of  the  general  political  government  of  the  state. 
They  are  the  agents  and  instrumentalities  the  state  uses  to 
perform  its  functions.  All  the  powers  with  which  they  are 
entrusted  are  the  powers  of  the  state,  and  the  duties  imposed 
upon  them  are  the  duties  of  the  state."- 

While  the  powers  and  functions  of  the  counties  vary  greatly  county 
throughout  the  United  States,  it  is  possible  to   find  certain  factions: 
common  factors  in  county  government  throughout  the  coun-  ■gtratl^n'of 
try.''    The  counties  are  everywhere  primarily  districts  for  the  justice 
administration   of  justice,  and   civil  and  criminal   courts  are 
held  at  frequent  intervals.    In  some  states,  as  will  be  seen,  the 
judges  are  chosen  from  large  districts,  but  the  administrative 
officers  of  the  courts  are  generally  county  officers.    As  a  part 
of  the  administration  of  justice,  the  county  provides  and  main- 
tains courthouses  and  jails.    In  some  states  the  county  is  to 
some  extent  a  police  and  militia  district,  and  in  almost  all  the 
states  the  county  is  the  district  for  probate  administration  and 
the  recording  of  land  titles. 

Counties  have  considerable  importance  in  the  administration  (2 )  Admin- 
of  finance.  In  most  states  the  county  boards  levy  taxes  for  finance 
their  own  purposes  and  spend  these  taxes.  Only  in  commission- 
governed  cities  is  a  similar  fusion  of  the  appropriating  and 
spending  power  found.  As  a  rule,  the  county  not  only  collects 
its  own  taxes  but  may  act  as  an  agent  of  the  collection  of  state 
revenues  and  sometimes  for  counties  and  other  districts. 


iFor  a  more  extended  treatment  see  H.  G.  James,  Local  Government 
in  the  United  States,  pp.  186-194. 

2 J.  A,  Fairlie,  Local  Government  in  Counties,  Towns,  and  Villages, 
p.  65,  quoting  Madden  v.  Lancaster  County,  65  Fed.  Rep.  188,  191; 
12   C.  C.  A.  566. 

3See  H.  G.  James,  Local  Government  in  the  United  States,  chap.  iv. 


importance 


seat 


320      STATE  AND  MUNICIPAL  GOVERNMENT 

(3)  other  In  the  majority  of  the  states  the  county  is  the  unit  of  poor 

functions  j-g^gf^  ^nd  outsidc  of  New  England  it  is  the  county  govern- 
ment that  constructs  and  maintains  county  roads  and  bridges 
and  sometimes  other  public  works.  In  some  states  counties 
maintain  hospitals  and  sanitariums  and,  more  rarely,  support 
charities. 

Political  The  counties  are  important  districts  for  election  purposes  in 

all  states.  In  the  choice  of  state  officers  the  county  is  always 
the  unit  for  canvassing  the  votes  and  generally  it  is  the  district 
for  electing  members  of  the  state  legislature.  Most  county 
officers,  moreover,  are  elected.  With  these  important  func- 
tions to  perform,  it  is  not  surprising  that  in  most  states  the 
county  is  the  unit  of  the  party  organization,  and  the  county 
committees  of  the  parties  outside  of  the  New  England  states 
rank  next  in  importance  to  the  state  committees. 

The  county  In  every  county  a  town  or  city  is  designated  as  the  county 
seat.  Here  are  located  the  courthouse,  the  jail,  and  the  offices 
of  the  county  officers,  while  either  in  the  town  or  close  by  are 
generally  grouped  the  other  county  institutions.  Usually,  when 
the  county  contains  a  town  of  fair  size  this  town  will  be  desig- 
nated as  the  county  seat,  but  there  are  cases  where  a  smaller 
community  nearer  the  territorial  center  of  the  county  is  chosen 
as  the  county  seat  instead  of  a  larger  city.  The  location  of 
the  county  seat  is  a  matter  of  considerable  importance;  in 
rural  communities  the  concentration  of  county  business  in  any 
town  generally  makes  that  town  the  most  prominent  com- 
munity in  the  county.  Since  the  county  seat  contains  the 
county  court,  at  which  all  probate  business  must  be  transacted, 
it  is  of  great  consequence  that  this  center  should  be  easily 
accessible.  Because  of  the  importance  of  the  county  seat, 
different  communities  vie  with  each  other  to  be  so  designated. 
In  general  the  legislature  determines  this  question,  but  in  the 
West  it  is  sometimes  decided  by  a  referendum  vote.  There  are 
counties  in  some  states  which  have  more  than  one  county  seat, 
and  in  New  England  courts  are  not  infrequently  held  in  two  or 
more  places  in  most  of  the  counties. 


THE  COUNTY  321 

The  Government  of  the  County 
I.    The  County  Board 
In  every  state  except  Rhode  Island   there  exists  in  each  Types  of 

.  .  ...  organiza- 

county,  for  the  execution  of  certain  governmental  functions,  a  tion: 
local  authority  often  although  not  invariably  called  the  county 
board/  It  is  generally  spoken  of  as  the  legislative  branch  of 
the  county  government,  but,  as  will  be  seen,  its  legislative 
functions  are  rather  closely  restricted,  and  it  performs  wide 
and  various  administrative  duties  and  in  some  cases  is  charged 
with  judicial  functions.  In  general,  there  are  two  types  of 
county  boards:  the  first  consists  of  a  small  board  of  commis- 
sioners elected  at  large  by  each  county;  in  the  second  the 
county  board  is  much  larger  and  is  composed  of  supervisors 
chosen  by  the  townships  and  cities  within  the  counties.  In 
some  states  either  one  or  the  other  of  these  types  exists  in  its 
simple  form ;  in  others  there  are  compromises  between  the  two 
types,  not  infrequently  including  new  and  unusual   features. 

The  srriall  county  commission  of  from  three  to  five  members  (i)  The 
is  found  in  New  England  and  in  all  but  five  of  the  Middle  sl'^'type 
Atlantic  and  North  Central  states,  as  well  as  in  the  mountain 
and  Pacific  states.  These  small  county  boards  meet  fre- 
quently and  are  active  administrative  bodies ;  they  also  have 
the  power  to  levy  taxes,-  and  exercise  both  executive  and 
legislative  functions. 

The  board  type  of  county  government  is  found  in  Michigan,  (a)  The 
New  Jersey,  New  York,  Wisconsin,  and  in  most  of  the  Illinois    °^^    ^^^ 
counties.    County  boards  of  this  kind  differ  from  the  county 
commissioners  in  more  respects  than  in  mere  size.    They  are 
composed  of  from  fifteen  to  twenty-five  members,  but  in  some 
counties  containing  a  large  city  the  number  of  commissioners 

iSee  J.  A.  Fairlie,  Local  Government  in  Counties,  Towns,  and  Vil- 
lages, pp.  75-94,  and  H.  G.  James,  Local  Government  in  the  United 
States,  pp.  130-139. 

-'In  Connecticut  and  New  Hampshire  the  county  commissioners  do 
not  have  these  powers,  which  are  intrusted  to  biennial  conventions  of 
the  members  of  the  state  legislatures  from  each  county.  In  Massa- 
chusetts the  county  appropriations  and  levies  are  made  by  the  legislature, 
but  the  estimates  of  the  county   commissioners  are  generally  adopted. 


32  2      STATE  AND  MUNICIPAL  GOVERNMENT 


County  or- 
ganization 
in  the 
Southern 
states 


/ 


may  be  as  large  as  fifty.  Instead  of  being  elected  at  large  by 
the  electorate  of  the  entire  county,  they  are  chosen  to  repre- 
sent local  districts  as  such  and  are  rarely  apportioned  ac- 
cording to  population.  Thus,  as  a  rule,  each  town,  whether 
large  or  small,  has  one  representative.  Larger  cities,  how- 
ever, are  sometimes  given  additional  representation,  though 
rarely  equal  to  their  population.  Exceptions  are  not  infre- 
quent ;  thus,  Detroit  has  more  than  a  majority  of  the  board  of 
supervisors  of  Wayne  County,  Michigan,  and  Chicago  has  ten 
of  the  fifteen  county  commissioners  of  Cook  County.  For 
legislative  purposes  and  for  levying  taxes  and  making  appro- 
priations these  boards  may  possibly  be  more  representative 
than  the  smaller  bodies  of  commissioners,  because  they  feel 
their  responsibility  to  their  local  community.  But  since  a 
greater  part  of  the  functions  of  the  county  board  is  execu- 
tive rather  than  legislative,  it  may  be  doubted  whether  these 
larger  boards  are  more  efficient  agents  for  the  general  pur- 
poses of  county  government  than  are  smaller  bodies  of 
commissioners. 

There  is  no  uniform  organization  for  county  boards  in  the 
Southern  states.  In  Kentucky,  Tennessee,  and  Arkansas  the 
quarterly  court  of  the  justices  of  the  peace  constitutes  the  ad- 
ministrative and  fiscal  authority  of  the  county ;  in  Virginia  the 
counties  are  divided  into  districts,  each  of  which  elects  a 
member  to  the  county  board ;  in  the  other  Southern  states  the 
county  board  is  a  small  body  of  from  three  to  five  members. 
Professor  Fairlie'  has  noted  two  characteristics  in  some  of  the 
states  in  the  South.  The  first  is  the  combination  of  judicial 
and  administrative  functions  as  found  in  Alabama,  Kentucky, 
Georgia,  and  Tennessee.  The  second  feature  is  a  tendency 
toward  a  definite  county  officer,  who  is  generally  the  county 
or  probate  judge,  the  leading  member,  the  chairman,  and  often 
the  executive  of  the  county  court.  This  system  reaches  its 
maximum  development  in  Georgia. 

1  Local  Government  in  Counties,  Towns,  and  Villages,  p.  82. 


THE  COUNTY  323 

2.    Powers  of  the  County  Board 

The  powers  and  duties  of  county  boards  are  strictly  deter- 
mined by  statute.  These  statutes  are  both  of  general  and  of 
particular  application  and  are  constantly  being  amended  and 
increased  in  number.  It  is  therefore  impossible  to  make  a 
comprehensive  classification  of  all  the  powers  and  functions 
of  the  county  boards.  But  in  general  they  manage  (i)  the 
county  finances  and  property,  (2)  highways  and  public  works, 
and  (3)  care  of  the  poor;  they  have  (4)  some  limited  ordi- 
nance and  police  power,  (5)  some  supervision  over  county 
officers,  and  (6)  in  some  cases  oversight  over  the  minor 
divisions  of  the  county. 

The  management  of  the  county  finances  is  the  most  impor-  county 
tant  function  of  the  county  board .^  The  board  levies  the 
taxes  on  general  property  for  county  purposes  and  also  the 
taxes  for  the  county's  share  of  the  state  tax.  This  power  may 
be  limited  by  both  constitutional  and  statutory  provisions.  In 
general,  a  tax  may  be  levied  only  for  authorized  purposes,  and 
very  frequently  it  may  not  exceed  a  certain  maximum  rate, 
which,  however,  may  sometimes  be  exceeded  as  the  result  of 
a  referdtodum  vote.  In  some  states  the  county  board  receives 
revenuMfrom  licenses  for  certain  trades  and  occupations.  Be- 
fore thfcdoption  of  the  Eighteenth  Amendment,  licenses  for  the 
sale  or  liquor  constituted  the  largest  source  of  revenue  under 
this  head.  Generally  speaking,  county  boards  may  not  raise 
money  by  issuing  bonds,  but  in  some  states  they  may  do  this 
as  the  result  of  a  popular  referendum,  and  in  all  states  special 
authority  may  be  granted  by  the  legislature  to  make  loans  for 
specific  purposes.  In  some  states  the  county  authorities  act  as 
boards  of  equalization  in  apportioning  taxes  among  the  various 
subdivisions  of  the  county.  With  the  power  to  levy  taxes 
usually  is  included  the  power  to  appropriate  revenue  for  par- 
ticular purposes.  This  is  restricted  by  state  statutes,  which, 
as  a  rule,  fix  the  compensation  of  certain  officers  and  require 

iSee  J.A.  Fairlie,  Local  Government  in  Counties,  Towns,  and  Villages, 
pp.  86-8g.  H.  G.  James,  Local  Government  in  the  United  States, 
pp.  232-251,  gives  a  more  extended  discussion  of  the  subject. 


324     STATE  AND  MUNICIPAL  GOVERNMENT 


County 
works 


Poor  relief 


Police 
power 


Control  over 

county 

officers 


Political 
powers 


certain  other  payments.    The  largest  items  in  county  expendi- 
tures are  for  courts,  roads,  bridges,  and  poor  relief. 

The  control  of  the  county  board  over  county  work  varies 
greatly  in  different  states.  Almost  without  exception  the  county 
board  has  the  power  to  locate  the  important  highways  and 
build  the  principal  bridges.  In  some  states  it  has  direct  super- 
vision over  the  construction  of  certain  roads,  although  this 
function  is  being  assumed  in  some  states  by  a  state  highway 
commission  and  in  others  by  the  local  authorities. 

Outside  of  New  England,  New  Jersey,  and  Pennsylvania, 
poor  relief  is  an  important  object  of  county  expenditure.  In 
most  of  the  states  there  are  county  almshouses,  which  are 
maintained  and  supervised  by  the  county  boards.  In  Cook 
County,  Illinois,  for  example,  there  are  various  special  institu- 
tions established  and  maintained  by  the  county  authorities. 
With  the  advance  in  the  administration  of  charity,  however, 
state  institutions  for  paupers,  insane  persons,  and  defectives 
are  gradually  superseding  the  old  county  poorhouse. 

Throughout  the  United  States,  except  in  New  England,  the 
county  boards  exercise  limited  police  power.  Before  the  adop- 
tion of  the  Eighteenth  Amendment  the  county  boards  com- 
monly issued  licenses  for  the  liquor  traffic,  and  in  the  Southern 
and  Western  states  they  now  regulate  inns,  taverns,  auc- 
tioneers, and  other  kinds  of  business  requiring  a  license.  Some-^ 

times  the  board  may  offer  bounties  for  the  destruction  of  wito^ 
animals  or  noxious  weeds.    But  as  a  general  rule  the  county 
boards  have  little  legislative  power,  this  being  usually  exercised 
by  means  of  special  acts  of  the  legislature. 

The  county  boards  appoint  only  a  few  officers  for  the  county 
and  have  little  control  over  those  chosen  by  popular  election.  ^~^ 
The  boards  may  be  called  upon  to  approve  the  bonds  which  -v>^ 
are  required  from  some  elective  officers  and  to  examine  their 
accounts.  In  a  few  states  they  are  allowed  to  fix  salaries,  and 
in  a  few  others  to  hold  hearings  and  remove  county  officials 
for  cause,  but  for  the  most  part  their  power  of  control  is 
very  slight. 

Since  the  county  is  a  political  unit,  the  county  boards,  out- 
side of  New  England,  have  important  powers  and  duties  in 


THE  COUNTY  325 

elections.  In  the  Southern  and  Western  states  they  establish 
polling  places  and  provide  ballots.  The  county  boards  also  act 
as  boards  of  canvassers  and  declare  the  results  of  elections. 

3.    Administration  of  Justice 
The  judges  in  thirteen  widely  separated  states  are  selected  centraiiza- 

tiou  sclcc- 

by  the  state  authorities.  In  all  the  New  England  states,  except  tion  of 
Rhode  Island  and  Vermont,  and  in  Delaware,  Florida,  Missis-  ^""^^^^ 
sippi,  and  New  Jersey  the  governor  makes  nominations  subject 
to  the  approval  of  his  council,  the  senate,  or,  in  Connecticut, 
the  legislature.  The  legislature  elects  the  judges  in  Georgia, 
Rhode  Island,  South  Carolina,  Vermont,  and  Virginia,  while 
in  the  other  states  they  are  chosen  by  popular  vote  for  varying 
terms. ^  As  a  rule  the  judges  for  courts  of  general  jurisdiction 
are  chosen  for  a  district  which  may  include  one  or  more  coun- 
ties. East  of  the  Mississippi  River  these  are  called  circuit 
judges,  while  farther  west  the  term  "district  judges"  is  used. 
In  general,  the  circuits  or  districts  constitute  the  smallest  area 
for  judges  exercising  general  jurisdiction.  An  exception  should 
be  noted  in  the  case  of  large  cities,  where  are  established 
special  municipal  courts  with  definitely  enumerated  jurisdic- 
tion. Although  judges  are  elected  by  districts  and  usually  hold 
court  within  the  district,  the  judges  of  the  circuit  or  district 
courts  are  considered  state  officers  and  may  exercise  jurisdic- 
tion in  any  part  of  the  state.  Thus  it  happens  not  infrequently 
that  judges  from  country  districts,  where  there  is  less  busi- 
ness before  the  court,  are  transferred  to  those  districts  with 
crowded  calenders. 

About  one  third  of  the  states  have  county  courts,  which  sit  county 

courts 

side  by  side  with  the  courts  of  general  jurisdiction  just  men- 
tioned. They  are  found  all  over  the  United  States  and  are 
not  confined  to  any  particular  group  of  states  or  aggregates 
of  population.  The  jurisdiction  of  the  county  courts  varies 
greatly :  in  California  and  Pennsylvania  they  exercise  general 
jurisdiction ;  in  New  York  they  are  limited  in  civil  jurisdiction 
to  cases  not  involving  more  than  two  thousand  dollars,  and 

iSee  pages  278-281. 


32  6      STATE  AND  MUNICIPAL  GOVERNMENT 

they  may  not  try  cases  of  murder ;  in  Illinois  they  have  original 
jurisdiction  in  tax-assessment  and  inheritance  cases  and  appel- 
late jurisdiction  from  the  justices  of  the  peace.^ 
Nonjudicial       The  county  courts  in  some  states  are  primarily  nonjudicial 
of'the  bodies.    For  example,  in  Arkansas,  Georgia,  and  Oregon  the 

county         court  has  no  civil  or  criminal  jurisdiction,  but  does  exercise 

courts  •'  ' 

probate  jurisdiction.    In  Kentucky  and  Tennessee  it  carries  on 
both  administrative  and  judicial  functions,  while  in  ^lissouri 
and  West  Virginia  the  county  court  has  no  judicial  functions 
whatever  and  is  purely  an  administrative  body. 
Probate  Probate  administration,  or  the  hearing  and  determination 

adminis- 

tration  of  questions  arising  in  matters  concerned  with  proving  wills 
or  the  administration  of  estates,  is  more  wndely  decentralized 
than  the  administration  of  justice.  In  practically  all  the  states 
the  administration  of  probate  is  a  county  matter.  Where  the 
county  courts  are  regularly  established  they  are  given  probate 
administration,  and  in  some  cases  it  is  their  only  function ;  in 
most  of  the  other  states  special  probate  courts  are  established, 
sometimes  for  districts  smaller  than  that  of  a  county,  and 
special  probate  judges  are  generally  elected  by  popular  vote, 
although  the  other  judges  may  be  chosen  by  a  different  method. 
In  Massachusetts,  however,  the  probate  judges,  like  all  the 
other  judges,  are  appointed  by  the  governor  with  the  consent 
of  his  council. 

Prosecuting  The  prosecuting  attorney  is  an  important  officer  in  the  ad- 
ministration of  justice.-  He  conducts  all  criminal  prosecutions 
and  may  represent  the  county  in  civil  suits.  In  most  states  he 
is  an  officer  of  the  county  and  is  elected  by  popular  vote, 
but  in  some  he  is  chosen  by  districts  larger  than  any  one 
county.    The  functions  and  duties  of  the  prosecuting  attorney, 

iThe  administration  of  justice  is  well  treated  in  both  J.  A.  Fairiie, 
Local  Government  in  Counties,  Towns,  and  \'illages,  pp.  95-118,  and 
H.  G.  James,  Local  Government  in  the  United  States,  pp.  134-160, 
197-200;  see  also  papes  269-277. 

-See  page  289,  also  H.  G.  James,  Local  Government  in  the  United  States, 
pp.  144-151,  and  H.  S.  Gans,  "The  Public  Prosecutor:  his  Powers, 
Temptations  and  Limitations,"  in  Annals  of  the  American  Academy  of 
Political  and  Social  Science,  Vol.  XLVII,  pp.  120-124. 


attorneys 


THE  COUNTY  327 

together  with  his  importance  as  a  judicial  officer,  have  been 
discussed  in  a  previous  chapter/ 

Every  county  has  a  sheriff;  he  is  the  officer  who  represents  The  sheriff: 
the  executive  power  of  the  state  within  the  county.-  The 
sheriff  is  responsible  for  the  preservation  of  the  peace  and  is 
the  chief  executive  agent  of  the  courts  of  the  county.  Every 
sheriff  is  assisted  by  a  varying  number  of  deputy  sheriffs,  who 
are  appointed  by  him  and  act  under  his  control.  They  may 
not  perform  discretionary  acts,  but  may  undertake  any  minis- 
terial act  which  the  sheriff  may  perform,  and  he,  as  a  general 
rule,  is  responsible  for  their  errors  and  mistakes. 

In  all  the  states  the  sheriff  is  a  popularly  elected  county  of-  ro  selection 

.  .  ,  ,  .  .  ,  and  com- 

ficer,  servmg  for  varymg  lengths  of  term.  At  common  law  pensation 
no  compensation  was  allowed  to  the  sheriff,  but  by  statute 
he  was  permitted  to  charge  certain  fees  for  his  services. 
Under  the  fee  system  the  sheriff's  compensation  became  enor- 
mous in  some  counties — in  New  York  County  it  was  said  to 
be  $50,000  at  one  time,  and  in  some  counties  in  Ohio  nearly 
$40,000.  Even  where  the  fee  system  has  been  abolished 
and  a  fixed  salary  established,  the  sheriff  is  the  best-paid 
county  officer. 

As  an  officer  charged  with  the  preservation  of  the  peace,  the  (2)  as  an 
sheriff  enforces  the  state  laws,  and  he  is  a  state  officer  from  officer™  ° 
this  point  of  view. 

He  may  upon  view,  without  writ  or  process,  commit  to  prison  all 
persons  who  break  the  peace  or  attempt  to  break  it ;  he  may  award 
process  of  the  peace  and  bind  anyone  in  recognizance  to  keep  it.  He 
is  bound,  ex  officio,  to  pursue  and  take  all  traitors,  murderers,  felons, 
and  other  misdoers  and  commit  them  to  jail  for  safe  custody.  For 
this  purpose  he  may  command  the  posse  comitatus,  or  power  of  the 
county ;  and  this  summons,  everyone  over  the  age  of  fifteen  years  is 
bound  to  obey.^ 

^See  pages  289-290. 

2See  Bouvier,  Law  Dictionary,  under  "Sheriff";  see  also  J.  A.  Fairlie, 
Local  Government  in  Counties,  Towns,  and  ^^illages,  pp.  106-112,  and 
H.  G.  James,  Local  Government  in  the  United  States,  pp.  151-157. 

^South  V.  Maryland,  18  How.  396,  402.  Quoted  by  J.  A.  Fairlie, 
Local  Government  in  Counties,  Towns,  and  Villages,  p.  109. 


32  8      STATE  AND  MUNICIPAL  GOVERNMENT 


[Importance  This  power  is  of  importance  in  times  of  threatened  riot 
enforcement  ^T  serious  disturbance,  particularly  in  cases  of  strikes.  In 
officer]  general  it  rests  with  the  sheriff  to  decide  what  measures  he 
shall  take  to  suppress  the  disorder :  he  may  attempt  to  control 
it  by  his  deputies,  or  he  may  summon  a  posse  comitatus,  or 
call  upon  the  governor  for  state  troops ;  in  extreme  cases  he 
may,  through  the  governor,  ask  the  aid  of  the  national  troops. 
During  ordinary  times  the  functions  of  the  sheriff  as  a  peace 
officer  are  less  appreciated.  There  are  no  organized  county 
police,  and  the  sheriff  does  not  have  control  of  the  police  force 
in  the  cities  or  the  constables  in  the  towns.  He  thus  has  very 
little  actual  power  to  enforce  the  laws  of  the  states.  Neverthe- 
less much  depends  upon  the  character  of  the  sheriff  for  the 
maintenance  of  law  and  order,  especially  in  rural  communities. 
Failure  to  enforce  certain  statutes  and  the  all  too  frequent 
outbreaks  and  lynchings  show  the  necessity  of  some  well- 
organized  state  or  county  police. 

As  has  been  said,  the  sheriff  is  an  agent  of  the  state.^  In 
this  capacity  he  is  primarily  responsible  in  theory  to  the  execu- 
tive department  of  the  state  government  and  in  particular  to 
the  governor.  Although  the  sheriff  occupies  such  a  position  the 
governor  in  most  states  has  very  little  power  of  supervision 
and  direction,  but  in  a  few  states-  he  is  given  power  to  remove 
sheriffs  for  cause,  and  this  has  been  done  in  some  cases.  This 
situation  is  only  another  example  of  the  weakness  of  the 
decentralized  and  disintegrated  executive  departments  which 
characterizes  most  of  the  states. 

The  greater  part  of  the  sheriff's  work  is  as  executive  agent 
of  the  courts.  At  each  session  the  sheriff  is  present,  either  in 
person  or  through  his  deputy,  for  the  maintenance  of  order  in 
the  courtroom.  Furthermore,  he  carries  into  execution  the 
various  orders  which  the  court  has  made  in  the  disposition  of 
the  cases.  He  thus  serves  all  writs  and  orders,  summonses  and 
subpoenas,  warrants  of  arrest  and  attachments.  In  addition, 
he  executes  the  final  judgment  of  decree  of  the  court.  This  in- 
volves, in  civil  cases,  collecting  the  award,  and  may  include  the 
seizure  and  sale  of  property  in  order  to  satisfy  the  judgment. 
'See  pane  169.  -Michigan,  New  York,  and  Wisconsin. 


(■3 1  As  an 
agent  of 
the  state 


(4)  As  an 
agent  of 
the  court 


THE  COUNTY  329 

In  criminal  cases  the  sheriff  as  keeper  of  the  county  jail  has 
custody  of  the  prisoners  confined  there  and  guards  and  delivers 
prisoners  sentenced  to  other  institutions.  Furthermore,  in  the 
majority  of  states  he  is  charged  with  the  execution  of  criminals 
sentenced  to  death. 

The  coroner  is  the  oldest  of  all  elective  county  officers.  It  The  coroner 
is  his  duty  to  hold  an  inquest  in  cases  where  it  seems  probable 
that  death  resulted  from  violence  or  unlawful  means.  The 
usual  practice  is  for  the  coroner  to  summon  a  jury,  ordinarily 
of  six  persons,  who,  from  the  evidence  presented  to  them  and 
the  more  or  less  expert  testimony  of  the  physician,  bring  in  a 
verdict  and  make  accusations.  Anyone  accused  by  the  verdict, 
if  not  already  in  custody,  is  liable  to  arrest  on  warrant  issued 
by  the  coroner.  The  duties  demanded  of  the  coroner  involve 
technical  knowledge  of  two  sorts :  he  needs  to  be  both  a  lawyer 
and  a  physician,  able  to  make  a  correct  diagnosis,  weigh  evi- 
dence, and  preside  over  his  jury.  A  man  of  these  abilities  is 
seldom  chosen,  and  coroners'  inquests  have  traditionally  been 
subjects  of  derision.  Massachusetts,  in  1877,  adopted  the  sys- 
tem of  medical  examiners,  who  report  the  cause  of  death,  and 
if  there  is  evidence  of  crime  further  action  is  taken  by  the 
regular  prosecuting  officer. 

In  less  than  half  the  states  the  office  of  county  clerk  has  county 
been  established.  Elsewhere  the  recording  officer  of  the  county  co"rt^  ^° 
is  known  as  the  clerk  of  the  courts.  As  such,  the  clerk  ^^^^^^ 
opens  and  adjourns  each  session  of  the  court,  prepares  the 
docket  of  cases  for  trial,  files  all  papers  connected  with  each 
'case,  issues  writs,  enters  the  judgment  of  the  courts,  and 
keeps  the  minutes  of  the  proceedings.  The  duties  are  almost 
entirely  ministerial.  In  connection  with  the  county  board  the 
clerk  of  courts  serves  as  secretary  and  keeps  the  records  of  its 
proceedings  and  in  some  cases  acts  as  county  auditor.  In 
Minnesota,  however,  the  county  auditor  acts  as  clerk  of  the 
county  board,  and  the  clerk  of  courts  is  simply  an  officer  of 
the  court.  Almost  universally  the  county  clerks  and  court 
clerks  are  electit^e  officers,  although  in  Connecticut,  New 
Hampshire,  and  Vermont  they  are  appointed  by  the  judges  and 
hold  office  during  pleasure  of  the  appointing  power. 


330      STATE  AND  MUNICIPAL  GOVERNMENT 


Finance 
officers : 
(1)  County 
assessors 


(2)  The 

county 

treasurer 


4.   Other  County  Officers 

In  most  of  the  Southern  and  in  practically  all  the  Western 
states  the  value  of  property  for  taxation  is  determined  by 
county  assessors.^  Their  main  duties  are  to  prepare  lists  of 
persons  subject  to  taxation,  with  a  description  and  valuation 
of  their  property.  Taxpayers  in  some  states  are  required  to 
submit  itemized  lists  of  their  property,  but  such  lists  do  not 
necessarily  limit  the  valuations  made  by  the  assessors.  In 
fixing  these  values  the  assessors  act  in  a  judicial  capacity,  but 
appeals  to  the  courts  may  be  made  in  case  of  arbitrary  or 
grossly  unequal  valuations.  Outside  the  group  of  states  just 
mentioned  assessments  are  made  by  the  township  officers,  but 
as  a  rule  there  is  a  county  officer  or  board  which  acts  as  an 
equalizing  authority. 

Every  state  except  Rhode  Island  provides  for  a  county 
treasurer,  who  is  usually  elected.-  This  officer  receives  the 
state  and  county  taxes  and  has  custody  of  the  county  funds, 
which  they  disperse  according  to  county  warrants.  In  some 
states  there  is  a  special  officer  who  acts  as  tax  collector;  else- 
where this  is  the  duty  of  the  treasurer.  The  treasurer's  term  of 
office  is  usually  two  years,  and  not  infrequently  the  same  person 
is  prohibited  from  serving  more  than  four  years  in  succession 
in  order  to  insure  an  exact  examination  of  the  county  funds. 
County  treasurers  formerly  considered  it  their  private  preroga- 
tive to  receive  all  interest  which  banks  allowed  them  on  the 
deposit  of  county  money,  the  theory  of  this  being  that  the 
county  treasurer  was  personally  responsible  for  all  the  county- 
funds.  In  rich  counties  this  amounted  to  a  large  sum;  thus, 
in  1904  the  treasurer  of  Cook  County,  who  had  agreed  to  turn 
over  to  the  county  all  such  interest,  paid  in  $500,000.^    Many 

iln  North  Carolina  and  South  Carolina  and  in  Tennessee  there  are 
township  or  district  assessors;  in  California  the  valuation  of  property 
for  city  taxes  is  made  by  city  officers.  On  the  other  hand,  county 
assessment  is  the  rule  in  Illinois  and  Nebraska,  and  in  South  Dakota 
counties  without  townships. 

-In  Connecticut,  Kentucky,  Louisiana,  New  Jersey,  and  Vermont  they 
are  appointed   by   county   boards;    in  South   Carolina  by   the   governor. 

"J.  A.  Fairlic,  Local  Government  in  Counties,  Towns,  and  Villages, 
PI).   123-124. 


THE  COUNTY  331 

states  at  present  require  the  county  treasurer  to  return  to  the 
county  all  interest  received  on  the  deposit  of  public  funds, 
and  pay  him  a  fixed  salary  and  the  expenses  of  his  office. 

In  less  than  one  half  of  the  states   county   auditors   are  (3)  county 

auditors 

prescribed  by  statute.  Indeed,  such  officers  are  most  necessary 
with  the  increasing  importance  of  the  financial  operations  of 
the  county.  Where  auditors  exist  they  are  paid  sometimes  on 
the  per-diem  basis  or  by  fees,  and  sometimes  by  fixed  salaries 
— under  the  fee  system  the  auditor  of  Cuyahoga  County,  Ohio, 
received  $50,000  in  1903.^  Where  auditors  are  not  established 
by  statute  the  county  board  itself  audits  the  accounts  of  the 
treasurer.  In  some  counties  in  Michigan  there  are  boards  of 
auditors  which  practically  determine  the  appropriations  as  well 
as  audit  the  claims. 

Titles  to  real  estate  and  all  documents  affecting  such  titles  The  regis- 

,    .         „  _,  .  J     trar  of  deeds 

are  matters  of  record  in  all  states.  Moreover,  these  records 
are  kept  by  county  officers  and,  in  about  half  of  the  states,  by 
an  elective  officer  known  as  the  registrar  of  deeds.  This  officer 
is  required  to  keep  in  bound  volumes  all  deeds,  mortgages,  and 
documents  affecting  the  titles  to  real  estate,  together  with  a 
description  of  the  estate.  From  these  volumes,  and  only  by 
means  of  such  records,  can  the  titles  to  real  estate  be  secured. 
In  order  to  make  sure  that  the  title  to  a  piece  of  real  estate 
is  good,  the  title  must  be  traced  through  each  succeeding  sale 
and  transfer,  and  examination  must  be  made  of  all  mortgages 
and  claims  that  have  at  any  time  been  recorded  against  the 
estate.  This  process  is  extremely  technical,  tedious,  and  com- 
plicated. In  order  to  avoid  this,  and  to  make  the  transfer 
of  real  estate  more  easy  and  the  title  more  secure,  some  states 
have  adopted  the  so-called  Torrens  System  of  land  registration. 
By  this  system,  after  judicial  hearing,  a  special  court  grants 
a  clear  title  which  is  guaranteed  by  the  state.  From  the  fees 
charged  for  this  service  an  insurance  fund  is  accumulated  which 
may  be  used  to  compensate  faulty  decrees.  This  system  has 
much  to  commend  it  and  has  met  with  general  approval  from 
all  but  the  lawyers  and  companies  engaged  in  searching  titles. 

ij.  A.  Fairlie,  Local  Government  in  Counties,  Towns,  and  Villages, 
p.  127. 


332      STATE  AND  MUNICIPAL  GOVERNMENT 

School  Outside  of  New  England  all  the  states  have  county  school 

officials  with  some  power  of  educational  control.  In  the 
Southern  states  the  county  school  authorities  very  frequently 
have  full  control  and  management  over  all  the  schools  within 
the  county,  while  in  the  remaining  states  they  have  supervision 
over  the  officers  elected  by  the  townships  and  cities.  This  con- 
trol in  the  South  is  exercised  by  two  sets  of  officers — the 
county  superintendents  and  the  boards  of  education,  which 
usually  control  the  school  property,  make  appropriations,  and 
sometimes  appoint  the  teachers.  The  superintendents  visit  the 
schools,  act  as  executive  agents  of  the  board,  and  exercise 
general  supervision  over  the  courses  of  study  and  the  methods 
of  teaching.  In  the  other  states  where  county  school  officials 
are  chosen,  the  county  superintendents  are  more  important 
than  they  are  in  the  South.  In  general  they  examine  the 
candidates  for  appointment  as  teachers  and  issue  licenses, 
although  this  function  is  sometimes  performed  by  county  ex- 
aminers. The  superintendents  visit  the  schools,  advise  the 
teachers,  organize  teachers'  institutes,  and  sometimes  consult 
with  the  local  bodies.  Furthermore,  they  sometimes  act  as 
agents  of  the  state  department  of  education.^ 

ipor  a  general   discussion   of   administration   in   school   matters  see 
pages  172-176. 


CHAPTER  XVIII 

MINOR  DIVISIONS  OF  LOCAL  GOVERNMENT^ 
I.  The  New  England  Town 
The  towns  in  New  England  have  been  defined  by  the  United  Definition 

,,..,  .  .  1-v    and  char- 

States  Supreme  Court  as     territorial  corporations,  into  which  acteristics 

the  state  is  divided  by  the  legislature,  from  time  to  time,  at  its 
discretion,  for  political  purposes  and  the  convenient  adminis- 
tration of  government ;  they  have  those  powers  only  which 
have  been  expressly  conferred  upon  them  by  statute,  or  which 
are  necessary  for  conducting  municipal  affairs."-  Originally 
the  New  England  towns  were  only  quasi-corporations,  and  in 
some  states  the  property  of  any  individual  inhabitant  might  be 
seized  to  satisfy  a  judgment  against  the  town.  Now,  however, 
the  corporate  character  of  the  towns  is  more  clearly  established, 
and  in  some  cases  they  partake  of  the  characteristics  of 
municipal  corporations.  Except  in  the  northern  regions  of 
New  Hampshire  and  INIaine  the  entire  territory  of  the  New 
England  states  has  been  divided  into  organized  towns.  These 
towns  are  irregular  in  size  and  shape  and  usually  contain  from 
twenty  to  forty  square  miles.  In  population  they  also  exhibit 
great  variations — the  town  of  Brookline,  Massachusetts,  hav- 
ing nearly  40,000  inhabitants,  while  three  quarters  of  the 
towns  in  New  England  have  a  population  of  less  than  2500. 
Generally  the  larger  communities  have  adopted  the  form  of 
city  government  which  absorbs  that  of  the  town,  but  Hartford 
and  New  Haven,  Connecticut — cities  of  100,000  and  over — 

1  These  are  more  fully  treated  in  J.  A.  Fairlie's  "Local  Government  in 
Counties,  Towns,  and  Villages,"  pp.  141-215,  which  has  been  freely 
consulted  in  preparing  this  chapter,  and  in  H.  G.  James's  "Local 
Government  in  the  United  States,"  chap.  v. 

2J.  A.  Fairlie,  Local  Government  in  Counties,  Towns,  and  Villages, 
pp.  142-143,  quoting  Justice  Gray  in  Bloomfield  v.  Charter  Oak  Bank, 
121  U.S.  121,  129. 

333 


meeting 


334      STATE  AND  MUNICIPAL  GOVERNMENT 

retain  the  separate  town  organization.  In  New  England, 
contrary  to  the  practice  of  the  Western  states,  there  is  no 
separate  village  government  for  settlements  within  the  town, 
with  the  result  that  the  towns  are  generally  larger  than  those 
in  the  Western  states  and  perform  wider  functions. 
The  town  The  New  England  towns  are  governed  by  the  town  meeting. 
This  is  a  direct  primary  assembly  of  all  the  inhabitants  of 
the  town  qualified  to  vote.  Commonly  town  meetings  are  held 
once  a  year,  although  special  meetings  may  be  called  from 
time  to  time.  The  assembly  of  a  town  meeting  involves  issuing 
a  warrant  which  designates  not  only  the  time  and  place  at 
which  the  meeting  is  to  be  held  but  the  business  to  be  trans- 
acted. This  warrant  enumerates  in  detail  the  definite  items 
of  business  which  are  to  be  taken  up.  Sometimes,  however, 
one  of  the  clauses  of  the  warrant  allows  the  town  meeting  to 
transact  any  other  business  that  may  be  brought  before  it. 
The  warrant  is  drawn  up  by  the  officers  of  the  town  (the 
selectmen),  who  have  considerable  discretion  as  to  what  shall 
be  placed  upon  the  warrant.  The  town  meeting  is  called  to 
order  by  the  town  clerk  or  by  one  of  the  selectmen,  and  the 
first  business  is  to  choose  a  moderator  for  the  meeting.  It  is 
the  practice  of  many  New  England  towns  to  choose  the  same 
person  for  moderator  year  after  year,  often  one  who  is  not 
one  of  the  selectmen.  This  gives  the  town  meeting  a  semblance 
of  independence  of  the  town  officers.  In  many  towns  this 
independence  is  more  than  a  mere  pretense,  for  the  meeting 
freely  criticizes  the  town  officers  in  their  duties.  The  business 
of  the  town  meeting  falls  into  two  classes:  the  first  is  the 
election  of  the  town  officers ;  the  second — perhaps  the  more 
important,  and  certainly  the  more  interesting — is  the  discus- 
sion and  voting  of  the  articles  on  the  warrant.  The  election 
of  officers  is  conducted  by  means  of  ballots  and  in  larger 
towns  differs  little  from  an  ordinary  local  election.  The  adop- 
tion of  the  articles  on  the  warrant  is  a  unicjue  and  interesting 
jMocedure.  The  town  clerk  reads  each  article  in  turn,  and 
each  is  subject  to  debate  and  amendment  by  the  members  of 
the  town  present  at  the  meeting.  In  the  rural  New  England 
towns,  where  the  population  is  largely  native  American,  this 


MINOR  DIVISIONS  OF  LOCAL  GOVERNMENT    335 

debate  and  discussion  is  interesting  and  educating.  Not  only- 
are  the  policy  of  the  selectmen  and  their  actions  during  the 
previous  year  subject  to  minute  criticism,  but  the  future  policy 
of  the  town  is  discussed.  The  participants  show  great  native 
shrewdness  and  often  considerable  skill  in  debate.  The  town 
meeting  has  authority  to  levy  taxes  and  to  appropriate  money 
for  all  the  objects  of  town  activities.  These  include  highways, 
schools,  poor  relief,  and,  in  varying  degrees,  water  supply, 
drainage,  sidewalks,  lighting,  and  other  town  activities.  For- 
merly attendance  at  the  town  meetings  was  large,  and  the 
plans  for  town  activities  were  actually  formulated  there.  More 
recently,  as  many  of  the  towns  have  increased  in  population,  the 
proportion  of  the  voters  attending  the  meeting  has  declined.^ 
Frequently  the  affairs  of  the  town,  as  well  as  the  nominations 
for  officers,  are  decided  in  caucuses,  and  the  meeting  itself 
has  degenerated  into  a  ratification  assembly.  Even  in  these 
cases,  however,  there  is  always  opportunity  for  debate  and 
criticism,  and  the  town  meetings  have  great  educative  value 
in  self-government. 

The  most  important  officers  of  the  town  are  the  selectmen.-  Town 
Towns  usually  choose  three  selectmen  annually,  although  there  (d  The 
are  some  instances  of  a  larger  number,  and  in  Massachusetts  selectmen 
the  three  selectmen  are  chosen  for  three  years,  each  one  retir- 
ing in  rotation.  The  selectmen  form  the  administrative  board 
of  the  town.  They  differ  from  the  boards  of  aldermen  in  cities 
and  from  the  county  boards  in  that  they  have  no  power  to  levy 
taxes  nor  to  make  ordinances.  Their  powers  are  determined  by 
the  town  meeting  or  are  conferred  by  statute,  and  they  vary 
greatly  from  town  to  town.  In  general,  the  selectmen  issue  war- 
rants for  the  town  meeting ;  they  lay  out  highways  and  drains, 
grant  licenses,  and  have  charge  of  town  property  ;  in  some  cases 
they  act  as  assessors  and  sometimes  as  poor-relief  and  health 
officers.  Their  financial  powers  are  slight,  but  they  may  draw 
warrants  upon  the  town  treasurer  in  accordance  with  the  vote 
of  the  town  meeting  and  adjust  claims  against  the  town. 

iln   some   of   the   larger  towns   the   town   meeting   is   replaced  by   a 
representative  body. 

-In  Rhode  Island  the  town  council. 


336      STATE  AND  :MUXICIPAL  GOVERNMENT 


(2)  The 
town  clerk 


(3)Assessors 


(4)  The 

town 

treasurer 


(5)  The 

school 
committee 


(6)  The  jus- 
tices of  the 
peace 


The  town  clerk  acts  as  secretary  of  the  town  meeting  and 
has  charge  of  the  records  of  the  town.  He  issues  marriage 
licenses,  registers  births  and  deaths,  and  in  Connecticut  and 
Rhode  Island  has  some  of  the  functions  of  the  registrar  of 
deeds  in  recording  deeds,  mortgages,  and  other  papers  affecting 
the  title  of  land.  Nominally  the  town  clerk  is  elected  each 
year,  but  in  practice  he  is  frequently  reelected,  and  there  are 
instances  of  clerks  serving  between  forty  and  fifty  years. 

In  some  towns  the  selectmen  act  as  assessors  of  taxes,  but 
in  the  larger  towns  special  officers  are  elected.  Their  duty  is 
to  value  the  property  of  the  town  and  assess  the  taxes  accord- 
ing to  the  votes  of  the  town  meeting  and  those  prescribed  for 
state  and  county  purposes. 

The  town  treasurer  receives  all  the  money  collected  by  taxes. 
These,  it  should  be  remembered,  include  the  town,  county, 
and  state  taxes,  which  are  ordinarily  collected  at  one  time  by  a 
single  officer  and  paid  by  the  treasurer  to  the  county  and  state 
authorities.  The  treasurer  also  pays  out  money  according  to 
the  warrants  signed  by  the  selectmen  and  keeps  account  of  the 
financial  condition  of  the  town. 

Every  town  elects  a  school  committee  to  which  women  have 
long  been  eligible  in  most  states.  In  the  majority  of  the  New 
England  states  the  town  school  committee  has  full  control  over 
the  schools — appointing  the  teachers  and  regulating  the  course 
of  study.  It  generally  acts  through  an  executive  officer  known 
as  the  school  superintendent,  whose  duties  are  advisory  and 
supervisory.  It  is  not  uncommon  for  small  adjacent  towns  to 
combine  in  employing  the  services  of  a  superintendent.  In 
Connecticut  and  Rhode  Island  some  of  the  towns  are  divided 
into  school  districts,  each  of  which  is  controlled  by  a  school 
board  known  as  trustees,  which  applies  the  taxes  voted  by  the 
district  for  the  school.  This  is  the  extreme  sign  of  decentral- 
ized administration. 

In  Maine  and  jSIassachusetts  the  justices  of  the  peace  are 
appointed  by  the  governor ;  in  the  other  New  England  states 
they  are  elected  by  the  towns.  Their  judicial  functions  in  the 
former  states  are  very  slight:  they  may  summon  witnesses, 
hold  preliminary  incjuiries,  and  commit  persons  for  trial ;  they 


MINOR  DIVISIONS  OF  LOCAL  GOVERNMENT    337 

also  may  take  acknowledgments^  and  perform  marriage  cere- 
monies. In  the  other  New  England  states  the  justices  of  the 
peace  have  limited  judicial  powers. 

Every  town  has  one  or  more  constables  who  are  peace  officers  (7)  other 
and  whose  duty  it  is  to  arrest  violators  of  the  law.  In  actual  "^^""^^ 
practice  they  do  not  perform  many  police  functions,  and  their 
duties  are  chiefly  ministerial  in  the  execution  of  writs  and 
warrants.  Yet  sometimes  they  act  as  collectors  of  taxes.  In 
many  towns  they  serve  as  highway  officers,  although  in  recent 
years  the  extension  of  state  roads  has  somewhat  limited  their 
functions.  jSIost  towns  in  New  England  have  library  trustees, 
park  commissioners,  and  a  large  number  of  minor  officials. 

2.  Townships  in  the  Central  States 

Throughout  the  central  states  organized  townships  are  bodies  Definition 
corporate  and  politic.  Their  corporate  capacity,  however,  is  actenstics 
strictly  limited,  and  they  are  more  properly  classified  as  quasi- 
corporations.^  They  may  sue  and  be  sued,  may  make  con- 
tracts for  the  exercise  of  their  legal  powers,  and  may  hold  land. 
Their  position  is  twofold :  they  are  districts  for  purely  local 
affairs  and  they  are  also  agencies  for  state  and  county  business. 
Inasmuch  as  in  this  group  of  states  the  county  is  a  more  impor- 
tant agency  of  local  government  than  it  is  in  New  England,  the 
township  occupies  a  less  important  place.  Moreover,  through- 
out this  group  of  states  are  found  incorporated  villages  which, 
on  the  one  hand,  reduce  the  importance  of  the  township  as  do 
the  incorporated  municipalities  on  the  other.  As  agencies  of 
the  county  and  state,  the  townships  assess  and  collect  the 
taxes  for  them  and  also  act  as  election  districts.  Most  of  the 
territories  in  this  group  of  states  are  divided  into  organized 
townships  which  are  regular  in  form  west  of  Ohio  and  are 
approximately  six  miles  square. 

There  are  two  types  of  township  meetings  found  in  this  re-  Township 
gion.  In  the  Northern  states,  which  were  settled  by  immigrants  ™^^  ^^^^ 

^The  act,  by  one  who  has  executed  a  deed,  of  going  before  some 
officer  or  court  and  acknowledging  that  it  is  his  act  and  deed. 

-J.  A.  Fairlie,  Local  Government  in  Counties,  Towns,  and  Villages, 
p.  167. 


officers 


338      STATE  AND  MUNICIPAL  GOVERNMENT 

from  New  England  or  under  New  England  influence,  town- 
ship meetings  are  established  by  statute,  and  primary  meet- 
ings of  the  qualified  voters  are  held.  The  attendance  at  these 
meetings  varies  greatly,  but  in  general  it  is  considerably  less 
than  that  at  the  town  meetings  of  New  England.  One  reason 
for  this  may  be  found  in  the  character  of  the  business.  In 
New  York  the  town  meeting  has  no  taxing  power,  all  town 
taxes  being  levied  by  the  county  board  of  supervisors.  In  other 
states  the  township  meeting  is  given  the  power  to  levy  taxes, 
but  in  IMichigan  the  township  board  may  levy  these  for  ordi- 
nary purposes  in  case  the  meeting  refuses  or  neglects  so  to  do. 
The  southern  tier  of  the  central  states^  has  no  deliberative 
township  meetings.  Elections  are  held  at  which  questions  may 
be  submitted  for  popular  approval,  but  there  is  no  genera] 
assembly  for  debate  and  decision  of  local  issues. 
Township  Two  typcs  of  cxccutive  officers  are  found  in  this  group  of 
states.  In  the  Dakotas,  Iowa,  Minnesota,  Ohio,  and  Pennsyl- 
vania the  township  supervisors  or  trustees  have  a  position 
analogous  to  the  selectmen  of  New  England,  while  in  the  other 
states  there  is  more  likely  to  be  an  executive  officer  with  well- 
defined  duties.  In  some  states-  he  not  only  acts  as  township 
officer  but  represents  the  town  on  the  county  board.  The  duties 
of  these  officers  vary  much  in  different  states  :  in  two^  the 
supervisors  act  as  town  treasurers  and  can  also  prosecute  in  the 
name  of  the  town ;  in  Michigan  they  are  the  assessors  and 
overseers  of  the  poor;  in  Indiana  the  town  trustee  has  charge 
of  the  township  finances,  is  overseer  of  the  poor  and  treasurer, 
trustee,  and  clerk  of  the  school  township,  is  an  election  officer, 
and  also  is  authorized  to  rearrange  road  districts.  The  town- 
ship boards  act  primarily  as  auditors  of  the  accounts  of  the 
township  officers  and  may  authorize  the  payment  of  claims. 
In  some  states  they  have  the  power  to  issue  licenses,  to  fill 
the  vacancies  in  township  offices,  and  (in  Missouri)  to  levy 
township  taxes.  As  a  rule,  where  there  is  no  single  head  officer 
of  a  township,  the  board  performs  the  general  administrative 
functions  and  usually  has  the  power  to  levy  taxes. 

'  Indiana,  Iowa,  Kansas,  Missouri,  Ohio,   and  Pennsylvania. 

-  Illinois,  Michigan,  New  York,  and  Wisconsin.     ^Illinois  and  New  York, 


MINOR  DIVISIONS  OF  LOCAL  GOVERNMENT    339 

The  townships  in  this  region  have  substantially  the  same  other 
officers  as  the  New  England  town,  but  their  duties  and  powers  °*^"^® 
are  of  less  importance,  inasmuch  as  throughout  this  region  the 
county  authorities  perform  or  supervise  more  services  than  in 
New  England.  Among  these  officers  should  be  mentioned  the 
township  clerks,  assessors,  treasurers,  overseers  of  the  poor,  and 
highway  overseers. 

In  this  group  of  states  justices  of  the  peace  are  elected  by  the  The  justices 
townships.  Primarily  they  are  county  officers,  but  they  gen-  °*  ^^^  ^^*^* 
erally  perform  their  functions  only  within  the  town  from  which 
they  are  elected.  Everywhere  they  exercise  judicial  power  in 
minor  cases.  This,  however,  is  strictly  limited — in  civil  cases 
generally  to  those  not  involving  sums  greater  than  from  one 
hundred  to  three  hundred  dollars ;  in  criminal  cases  to  petty 
crimes  and  misdemeanors.  For  more  serious  criminal  offenses 
they  may  issue  warrants,  hold  preliminary  hearings,  and  commit 
the  prisoners  for  trial  or  release  them  on  bail. 

In  the  central  states  school  districts  are  local  corporations  school 
distinct  from  the  township  corporations.  Generally,  however, 
they  correspond  in  area  to  the  townships  or  may  be  subdivi- 
sions of  them.  In  many  of  the  states  provision  is  made  for 
school  meetings  of  the  voters  of  the  districts,  which  are  like 
the  town  meetings  of  New  England.  They  elect  the  school 
officers,  vote  taxes,  locate  sites  for  schools,  and  decide  upon 
questions  of  management.  It  is  usual  for  three  trustees  to  be 
chosen  as  district  officers,  who  constitute  the  board  which 
actually  manages  the  schools. 

3.  County  Districts  in  the  South  and  West^ 

In  the  Southern  and  Western  states   there  are  no  quasi-  character- 
corporations  corresponding  to  the  towns  of  New  England  and  county* 
the  townships  of  the  central  states.    For  the  purpose  of  manag-  t^e^south" 
ing  local  affairs  the  counties  are  divided  into  districts  which  and  west 
differ  in  two  important  respects  from  the  other  areas  of  local 
government  just  discussed.  They  are  simply  subdivisions  of  the 

^See  J.  A.  Fairlie,  Local  Government  in  Counties,  Towns,  and  Villages, 
chap.  xi. 


340      STATE  AND  MUNICIPAL  GOVERNMENT 


Districts  of 
the  South- 
ern states : 
(i)  County 
districts 


(2)  School 
districts 


county  for  the  purposes  of  administration,  and  as  such  have 
no  power  to  levy  taxes  or  to  pass  ordinances,  and,  with  the 
exception  of  the  school  districts,  have  no  corporate  character. 
In  the  second  place,  the  practice  in  the  South  and  West  differs 
from  that  in  the  North,  where  a  single  district  is  used  for  all 
purposes  of  local  administration.  In  the  former  separate  dis- 
tricts are  established  for  different  purposes,  and  these  districts 
are  not  necessarily  conterminous,  although  they  may  overlap 
one  another. 

Two  types  of  districts  are  usually  found  in  the  Southern 
states.  The  first  is  for  the  purposes  of  county  administration 
and  is  known  by  many  designations,  as  magisterial  district,^ 
civil  district,-  township,^*  election  district  or  precinct,*  super- 
visor's district,^  militia  district,'"'  hundred,'  ward,*  precinct.® 
These  districts  are  used  for  the  election  of  members  of  the 
county  board  and  in  some  states  for  the  election  of  justices  of 
the  peace  and  of  assessors.  The  justices  of  the  peace  have  nearly 
the  same  jurisdiction  as  in  the  states  that  have  already  been  ex- 
amined, and  occasionally  they  are  also  members  of  the  county 
boards  and  the  general  public  agents  for  the  districts  in  local 
affairs.  All  the  Southern  states  are  also  divided  into  school 
districts;  in  the  states  bordering  on  the  Atlantic  the  district 
school  officers  are  appointed  by  the  county  school  authorities, 
but  in  some  of  the  other  states  the  districts  include  only  a 
single  school,  and  the  trustees  or  directors  are  locally  elected. 
As  has  been  pointed  out,  the  school  districts  have  a  corporate 
character.  Several  reasons  might  be  advanced  for  the  small 
part  played  by  these  county  districts  in  local  government. 
Most  obviously  the  counties  in  the  South  have  wider  functions 
than  those  in  New  England.  But  it  should  be  also  remembered 
that  the  population  in  the  South  is  of  a  more  rural  character 
and  the  estates  are  much  greater.  Moreover,  the  presence  of  the 
negro  population,  which  is  generally  debarred  from  the  privi- 
leges of  taking  part  in  government,  prevents  the  development 

1  Kentucky,  Virginia,  and  West  VirRinia. 

^Tennessee. 

•''Arkansas,  Montana,  North  Carolina,  and  South  Carolina. 

••Alabama,  Florida,  and  Maryland.  "Mississippi.  "Georgia. 

"Delaware.  ^Louisiana.  "Texas. 


MINOR  DIVISIONS  OF  LOCAL  GOVERNMENT    341 

of  the  active  local  governments  found  in  the  North.  All  these 
factors  combine  to  render  these  districts  less  important  than 
the  towns  and  townships  in  other  states.^ 

The  county  districts  in   the  Western  states  are  generally  The  west- 

.  r      1        T4T-JJ1      iiT         ern  states 

larger  than  the  congressional  townships  of  the  Middle  west 
and  the  county  districts  of  the  South.  Except  in  Oregon  the 
cities  and  villages  are  commonly  included  within  the  county 
district.  As  a  rule,  justices  of  the  peace  and  constables  are 
chosen  in  each  district  with  functions  similar  to  those  described 
in  other  sections.  In  addition  to  these  divisions  of  the  county, 
road  districts  may  also  be  formed.  But  more  important  than 
these  are  the  school  districts,  which  are  established  by  the  county 
boards  or  county  superintendents  of  schools.  Broadly  speak- 
ing, there  is  a  district  for  every  school,  although  city  districts 
naturally  include  more  than  one  school.  In  each  district  there 
is  chosen  a  board  of  trustees  which  employs  the  teachers  and 
controls  the  school  property.  When  the  taxes  for  the  support  of 
the  schools  are  levied  by  the  county  board  of  supervisors,  a 
special  district  tax  may  be  voted  by  the  electors  in  each  district. 

4.  Villages  and  Boroughs 

Villages  or  boroughs  are  small,  compactly  built  districts  Definition 
possessing  charters  of  incorporation.  They  differ  from  the 
municipal  corporation  or  cities  chiefly  in  size  and  from  the 
New  England  towns  in  that  they  usually  include  only  those 
parts  of  a  township  which  are  compactly  settled.  In  many 
states  they  are  known  as  villages,  but  often  they  are  called 
towns  or  incorporated  towns.  The  method  of  incorporation 
usually  requires  a  petition  from  the  inhabitants  of  the  district 
and  a  popular  vote.  This  petition  may  be  presented  to  the 
judge  of  the  principal  local  court,  or  to  the  county  board  or 
town  supervisor,  according  to  prescription.  In  some  states  the 
villagers  remain  a  part  of  the  township,-  while  in  others  they 
are  independent  of  it. 

iSee  J.  A.  Fairlie,  Local  Government  in  Counties,  Towns,  and  Villages, 

pp.    IQI-IQS- 

2  Illinois,  Indiana,  Iowa,  Kansas,  Michigan,  New  York,  and  Ohio. 

3  The  Dakotas,  Minnesota,  New  Jersey,  Pennsylvania,  and  Wisconsin. 


342 


STATE  AND  MUNICIPAL  GOVERNMENT 


Functions 
of  the 
villages 


Village  or- 
ganization 


Village 
officers 


The  functions  of  the  villages  vary  in  different  parts  of  the 
country.  In  New  England  they  are  relatively  of  little  impor- 
tance, as  they  only  supplement  the  organized  active  life  and 
duties  of  the  town.  Wherever  the  villages  remain  parts  of  the 
township  their  status  is  about  the  same  as  in  New  England, 
but  where  they  are  independent  of  the  township  the  village 
government  usually  adds  the  duties  ordinarily  performed  by 
the  town.  In  general,  the  villages  provide  for  fire  protec- 
tion, street  pavements,  sidewalks,  sewers,  waterworks,  street 
lighting,  and  police. 

The  principal  authority  in  a  village  is  the  council  or  board 
of  trustees.  Such  councils  have  power  to  pass  ordinances  on 
subjects  enumerated  in  the  statutes;  they  have  control  of  the 
streets,  and  authority  to  issue  licenses  for  certain  occupations 
and  to  construct  the  necessary  public  works.  To  accomplish 
these  purposes  the  village  councils  have  limited  power  of  tax- 
ation and  generally  may  issue  bonds  for  certain  purposes, 
although  the  amount  of  these  bonds  and  the  objects  for  which 
they  may  be  issued  are  regulated  by  statute. 

The  village  officers  are  ordinarily  prescribed  by  statute, 
although  the  village  may  in  some  cases  establish  and  appoint 
additional  ones.  In  every  village  there  is  a  chief  officer,  known 
by  various  titles — mayor,  president,  or  chairman  of  the  board 
of  trustees.  The  other  officers  include  a  village  clerk,  a  treas- 
urer, and  some  police  officer.  Most  villages  have  a  street  com- 
missioner and,  in  some  states,  assessors  and  attorneys.  Not 
infrequently  villages  are  conterminous  with  school  districts, 
and  in  New  York  State  the  village  law  makes  provision  for 
boards  of  health  and  for  fire,  water,  lighting,  sewer,  and 
cemetery  commissioners. 


PART  V 
MUNICIPAL  GOVERNMENT 


CHAPTER  XIX 

CHARACTERISTICS  OF  AMERICAN  CITIES 

A  city  has  been  defined  "as  a  body  of  population  massed  in  Definition 
a  small  area."^  To  the  elements  of  population  and  area  should 
be  added  the  fact  of  incorporation.  An  American  city,  there- 
fore, is  a  municipal  corporation  occupying  a  definite  area  and 
subject  to  the  state  from  which  it  derives  all  its  powers  and 
for  which  it  exists  as  an  area  of  local  government.  The  Ameri- 
can city  possesses  territorial  and  sociological  characteristics, 
which  result  from  the  massing  of  population  on  a  compara- 
tively small  area.  It  has,  furthermore,  a  definite  relation  to 
the  state  government  as  an  area  of  local  administration.  And, 
finally,  as  a  corporation  it  has  definite  powers  and  performs 
certain  very  important  functions  for  its  inhabitants." 

A  city  is  formed  because  a  number  of  persons  are  from  Reasons 

for  6xist6iiC6 

various  motives  drawn  together  at  a  particular  place.  In  the  of  cities 
United  States  the  considerations  which  caused  and  continue  to 
cause  the  development  of  cities  are  defensive,  political,  com- 
mercial, and  industrial.  It  was  not  uncommon  in  colonial  times 
for  the  colonists  to  group  themselves  around  a  fort;  for  ex- 
ample, Pittsburgh  had  its  origin  in  the  settlement  which  grew 
up  around  Fort  Pitt.  In  like  manner,  some  cities  had  de- 
veloped around  the  army  posts  in  the  West.  Washington  is  an 
example  of  a  city  caused  by  political  forces,  and  not  a  few  of 

iW.  B.  Munro,  The  Government  of  American  Cities  (3d  ed.),  p.  29. 

2  One  of  the  most  comprehensive  and  detailed  studies  of  the  charac- 
teristics of  cities  is'  given  by  Dr.  A.  F.  Weber,  "The  Growth  of  Cities  in 
the  Nineteenth  Century"  (iSgg),  Columbia  University  Studies  in  His- 
tory, Economics,  and  Public  Law,  Vol.  XI.  Briefer  treatments  are  by 
D.  F.  Wilcox,  The  Great  Cities  of  America,  and  The  American  City  ; 
F.  J.  Goodnow  and  F.  G.  Bates,  Municipal  Government  (1919).  chaps,  i, 
ii ;  W.  B.  Munro,  The  Government  of  American  Cities,  chap,  ii,  with 
references.  For  further  references  see  W.  B.  Munro,  Bibliography  of 
Municipal  Government. 

345 


346      STATE  AND  MUNICIPAL  GOVERNISIENT 

our  state  capitals  have  developed  because  a  particular  locality- 
was  chosen  as  the  seat  of  the  government  of  the  state.  By  far 
the  greater  part  of  the  American  cities,  however,  have  been 
founded  and  developed  as  the  result  of  trade  or  industry.  Of 
these  two  motives  trade  is  the  more  important.  If  there  were  no 
external  trade  the  limit  of  the  industry  of  the  city  would 
depend  solely  upon  the  demand  of  the  local  markets.  It  is 
only  by  trade  that  the  products  of  one  locality  can  be  brought 
to  other  localities  and  exchanged  for  other  products.  Trade 
thus  depends  upon  transportation,  and  the  greatest  cities  of 
ancient  and  modern  times  have  developed  along  the  routes 
of  transportation.  Wherever  the  process  of  transportation  is 
broken,  and  the  goods  transferred  from  one  form  of  carriage 
to  another  or  from  one  owner  to  another,  a  city  was  almost 
sure  to  develop.  Thus  the  early  American  cities  developed  at 
the  seaports  like  Philadelphia,  New  York,  and  Boston,  which 
were  the  terminal  points  of  the  import  trade.  In  modern  times 
the  development  of  Chicago  and  the  great  inland  cities  of  the 
West  is  in  part  explained  by  their  being  points  of  transfer. 
While  trade  is  responsible  for  the  founding  and  development 
of  the  largest  cities  in  the  United  States,  industry  is  more  im- 
portant in  the  cities  of  the  second  class.  In  both  New  York 
and  Chicago  a  greater  percentage  of  the  population  is  engaged 
in  commerce  or  transportation  than  in  industry.  Philadelphia, 
the  third  largest  city  in  the  United  States,  is  an  exception  in 
that  it  has  a  larger  proportion  of  its  population  engaged  in 
industry.  In  some  cities  with  a  population  under  500,000 
the  industrial  inhabitants  are  from  two  to  five  times  as  great 
as  those  engaged  in  commerce. 
Area  It  is  almost  impossible  to  generalize  concerning  the  area  of 

American  cities.  This  varies  from  Los  Angeles,  California, 
which  has  an  area  of  365  square  miles  with  a  population  of 
more  than  575,000,  to  West  Hoboken,  New  Jersey,  with  an 
area  of  1.5  scjuare  miles  and  a  population  of  about  40,000. 
New  York  City  has  an  area  of  more  than  300  square  miles ; 
New  Orleans,  198:  Philadelphia,  129;  Chicago,  199.  No  other 
cities  are  more  than  100  square  miles  in  area  and  not  many 


CHARACTERISTICS  OF  AMERICAN  CITIES     347 


are  over  50;  a  large  number  extend  between  10  and  20  square 
miles;  while  about  a  third  have  less  than  10. 

The  growth  of  cities  is  a  modern  phenomenon.  This  is  par-  Population 
ticularly  true  in  the  United  States,  where  the  rapid  growth  of 
cities  has  surpassed  that  in  all  other  countries.  Not  only  are 
cities  developing  quickly,  but  the  urban  population  is  increas- 
ing more  rapidly  than  the  rural  population.  Thus  the  census 
of  1920  (see  table  following)  shows  that  54,318,032  out  of  a 
total  population  of  105,708,771  in  the  continental  area  of  the 
United  States  were  found  in  cities  and  towns  of  more  than 
2500  inhabitants;  that  is,  51.4  of  the  population  was  urban, 
and  48.6  rural. 

POPULATION 


1920 

1910 

1900 

1890 

1880 

Urban     .     .     . 
Rural      .    .    . 

54,318,032 
51.390,739 

42,623,383 
49,348,883 

30,797,185 
45,197,390 

22,720,223 
40,227,491 

14,772,438 
35.383.345 

Per  Cent  of  Total  Population 

Urban     .     .    . 
Rural      .     .     . 

51.4 
48.6 

46.3 

537 

40.5 
59-5 

36.1 
639 

29.5 
70.5 

Since  1880  this  change  has  been  going  on  with  rapidity.  It 
is  impossible  to  state  at  present  to  what  extent  the  World  War 
retarded  or  accelerated  this  movement.  In  the  decade  between 
1900  and  1910  the  percentage  of  urban  to  the  total  population 
increased  from  40.5  to  46.3.  Without  doubt  the  war  increased 
the  concentration  in  certain  industrial  communities,  but,  like- 
wise, the  decline  in  immigration  between  19 14  and  1920  re- 
tarded the  growth  both  of  the  total  population  and  of  the  urban 
population  as  well.  This  concentration  of  the  majority  in 
cities  profoundly  affects  the  economic  and  social  life  of  the 
entire  country.  It  increases,  moreover,  the  interest  and  impor- 
tance of  municipal  government,  since  the  larger  part  of  the 
population  of  the  United  States,  so  far  as  its  local  government 
is  concerned,  is  found  not  in  counties  or  townships  but  in 
chartered  municipalities.    The  urban  population  of  the  United 


tion 


348      STATE  AND  MUNICIPAL  GOVERNMENT 

States  is  increasing  more  than  seven  and  a  half  times  as  fast  as 
the  rural — in  the  last  decennial  period  the  urban  population 
increased  25.2  per  cent,  while  of  the  rural  districts  containing 
a  population  under  2500  the  increase  was  only  3.4  per  cent. 
Nine  and  one-half  per  cent  of  the  population  in  the  United 
States  is  to  be  found  in  cities  of  more  than  1,000,000  inhabitants, 
and  15^  per  cent  live  in  cities  of  more  than  500,000.  In  spite 
of  the  remarkable  growth  of  some  of  the  large  cities,  the  great 
majority  of  the  urban  inhabitants  of  the  United  States  is  in 
cities  of  less  than  25,000.  Thus,  although  the  greater  part  of 
the  total  population  of  the  United  States  is  urban,  the  majority 
of  that  urban  population  is  distributed  in  comparatively  small 
cities  which  are  untouched  or  affected  only  to  a  slight  degree  by 
the  problems  confronting  the  largest  cities. 
Sources  of  The  population  of  cities  grows  in  two  ways :  by  natural 
in  popuia-^  increase  of  those  within  the  city  and  by  the  migration  of  those 
who  were  born  outside  of  the  city.  In  the  past  the  natural  in- 
crease without  immigration  was  not  sufficient  to  maintain  the 
population  of  the  city.  The  death  rate  was  higher  than  the 
birth  rate.^  Thus  it  is  estimated  that  in  London  the  ordinary 
death  rate  during  the  seventeenth  century  was  approximately 
fifty  persons  per  thousand,  and  not  until  about  1800  did  the 
annual  death  rate  fall  below  the  birth  rate.-  Similar  conditions 
existed  in  the  United  States.  Hence  one  reason  for  the  continued 
growth  of  the  cities  has  been  the  decline  of  the  death  rate.^ 
By  far  the  larger  part  of  the  greater  population,  however, 
has  come  from  migration.  In  European  cities  this  migration 
is  from  a  relatively  short  distance,  but  not  so  in  the  United 
States.  Although  it  is  true  that  there  is  a  steady  flow  of  native- 
born  inhabitants  from  the  rural  districts  to  the  cities,  this  is 
greatly  enforced  and  surpassed  by  immigration  from  abroad. 
Such  migration  and  immigration  are  from  four  to  five  times 
as  large  as  the  natural  increase  in  city  population."* 

lA.  F.  Weber,  The  Growth  of  Cities  in  the  Nineteenth  Century,  p.  231. 
2W.  H.  Munro,  The  Government  of  American  Cities,  p.  3Q. 
•'See  W.  B.  Munro,  The  Government  of  American  Cities,  p.  ^q,  for  a 
table  showing  the  declining  death  rate  of  four  large  American  cities. 
•»A.  F.  Weber,  The  Growth  of  Cities  in  the  Nineteenth  Century,  p.  246, 


CHAR-\CTERISTICS  OF  AMERICAN  CITIES     349 

In  spite  of  the  large  immigration  of  foreigners  to  the  United  characteris- 

,  f     1       ^    .    1  1      •        tics  of  the 

States,  m  19 10  less  than  15  per  cent  of  the  total  population  urban  popu- 
was  foreign-born.  In  rural  districts  only  about  7.5  per  cent  of  ^(^i^c^stnbu- 
the  population  was  foreign-born,  but  an  entirely  different  con-  tion  by 

•r    f  or  *       ^  iB^ce  and 

dition  existed  in  cities.  Of  the  total  urban  population  22.6  per  nationality 
cent  was  foreign-born,  and  in  the  eight  cities  with  a  population 
of  more  than  500,000,  33.6  per  cent  of  the  inhabitants  was 
foreign-born.  Even  more  startling  is  the  percentage  of  foreign- 
born  in  the  industrial  cities  of  smaller  size.  Thus,  in  cities  with 
populations  between  25,000  and  100,000,  twenty-seven  had  a 
foreign-born  population  of  more  than  t^t,  per  cent,  and  ten  of 
more  than  40  per  cent,  while  Passaic,  New  Jersey,  had  a 
foreign-born  population  of  more  than  52  per  cent.  Even  these 
figures  are  surpassed  by  the  percentages  for  foreign-born  and 
their  native-born  children.  Of  the  total  urban  population  51.6 
per  cent  was  either  foreign-born  or  born  of  foreign-born  parents. 
Only  15  per  cent  of  the  population  in  Woonsocket,  Rhode 
Island,  was  of  native  parentage;  13.8  per  cent  in  Passaic;  and 

13.6  per  cent  in  Lawrence,  Massachusetts.  In  addition  to  this 
large  foreign-born  element  the  population  of  certain  cities  is 
complicated  by  the  presence  of  the  negroes.  Taking  the  cities 
having  more  than  25.000  inhabitants,  only  6.3  per  cent  of  the 
population  was  negroes,  but  in  certain  cities  the  negro  popu- 
lation was  more  than  50  per  cent.^  Startling  as  these  figures 
are,  a  comparison  will  show  that  the  percentage  of  aliens,  while 
increasing  in  the  country  at  large,  has  actually  decreased  in 
the  cities.- 

Economic  reasons  largely  determine  the  place  of  settlement  [Reasons 
of  the  alien  immigrants.    \\  hile  it  is  true  that  immigrants  trom  concentra- 
certain  countries  have  taken  up  large  rural  areas,  the  majority  c^fes]' 
of  the  aliens  first  settle  in  the  cities.    This  has  been  the  case 
especially  in  the  past  few  decades,  when  the  character  of  the 
alien  immigration  coming  into  the  country  was  such  that  the 

1  Charleston,  South  Carolina,  52.8  per  cent;  Savannah,  Georgia,  51.1 
per  cent;   Jacksonville,  Florida,   50.8  per  cent;   Montgomery,  Alabama, 

50.7  per  cent. 

-Goodnow  and   Bates,  Municipal   Government,  p.   27.    The  statistics 
in  this  paragraph  are  derived  and  adapted  from  this  source. 


350      STATE  AND  MUNICIPAL  GOVERNMENT 

immigrant  was  fit  for  little  but  unskilled  labor.  The  cities, 
whether  large  or  small,  furnish  employment  for  this  labor.  In 
the  very  largest  ones,  where  a  greater  proportion  of  the  popu- 
lation is  engaged  in  commerce  than  in  industry,  the  public 
works  and  the  rough  manual  labor  required  by  commerce 
absorb  great  numbers  of  unskilled  laborers.  In  the  cities  of 
the  second  and  third  class,  where  the  greater  part  of  the  popu- 
lation is  engaged  in  industry,  the  invention  and  development  of 
automatic  machinery  has  opened  a  wide  field  for  unskilled 
labor.  Here  the  immigrants  are  likely  to  settle.  Outside  of 
the  cities  almost  the  only  occupation  which  absorbs  a  large 
amount  of  alien  unskilled  labor  is  mining.  Thus,  in  Pennsyl- 
vania and  the  other  mining  states  a  much  higher  percentage  of 
aliens  is  found  outside  of  the  cities  than  is  true  in  purely 
agricultural  states.  The  development  of  groups  or  colonies  of 
aliens  of  the  same  nationality  naturally  attracts  aliens  of  their 
own  nation  to  that  region.  Thus,  although  the  original  number 
of  aliens  of  a  particular  nationality  in  any  one  community  may 
have  been  small,  aliens  of  the  same  nationality  are  attracted  to 
the  same  locality.  This  in  part  accounts  for  the  development 
of  somewhat  larger  alien  colonies  in  certain  cities. 
[Effect  of  It  was  formerly  held  that  the  large  number  of  aliens  in  our 

immlgm-      largest  cities  was  responsible  for  the  evils  too  often  found  in 
tionj  |-j^g  government  of  those  cities.    It  may  be  doubted  whether 

this  excuse  or  explanation  is  adequate.  As  Professor  Munro 
has  pointed  out,  Philadelphia  has  a  smaller  percentage  of  alien 
population  than  any  other  of  the  largest  cities  of  the  United 
States,  yet  Philadelphia  has  been  for  years  a  conspicuous  ex- 
ample of  municipal  misgovernment.  It  is  entirely  true  that 
most  of  the  aliens  are  unfamiliar  with  self-government  and 
have  no  political  traditions.  It  is  also  true  that  too  often  their 
ignorance  is  exploited  by  political  leaders  for  selfish  reasons, 
and  it  is  also  beyond  doubt  that  leaders  of  their  own  nation- 
ality and  the  newspapers  published  in  their  native  languages 
frequently  give  them  incorrect  ideas.  Nevertheless  the  natural- 
ized alien  is  not  indiscriminating.  His  greatest  weakness  is  his 
attachment  to  customs  or  traditions  incompatible  with  Ameri- 
can ideals  and  habits  and  his  inherited  suspicion  and  jealousy 


CHAFLACTERISTICS  OF  AMERICAN  CITIES     351 

of  other  nationalities.  Thus,  reformers  have  frequently  found 
it  impossible  to  gain  the  combined  support  of  different  groups 
of  foreign-born  citizens  because  of  their  unwillingness  to  unite 
with  other  nationalities  and  their  fear  that  some  cherished 
custom  might  be  interfered  with  by  a  political  change.^ 

In  the  total  population  of  the  United  States  the  males  out-  (2)  statis- 
number  the  females,  but  in  the  cities  the  reverse  is  true.  This  population 
is  readily  explained  by  the  different  character  of  the  occupa-  ^"3°^^^'°^ 
tions.  In  rural  districts  agriculture  and  mining  employ  more 
males  than  females ;  in  the  cities,  however,  certain  types  of 
industries  employ  more  women  than  men.  ^Moreover,  to  an 
increasing  degree,  women  are  finding  employment  in  commerce 
and  trade.  This  disproportion  is  constantly  being  increased,- 
especially  in  those  cities  where  the  industries  employ  a  large 
number  of  women;  for  example,  the  textile  industries.  The 
effect  of  such  disproportion  is  not  important  in  itself,  but  it 
probably  leads  to  certain  very  important  and  far-reaching  re- 
sults. While  statistics  show  that  most  of  the  women  engaged 
in  industry  are  unmarried,  a  large  number  of  married  women 
are  employed  in  different  occupations.  The  number  of  married 
women  employed  in  manufacturing  plants  is  large."  The  effect 
of  the  employment  of  married  women  in  industry  is  clearly 
brought  out  by  the  mortality  tables.  In  Fall  River,  for  ex- 
ample, where  ^^  per  cent  of  all  the  women  in  the  city  work  in 
industry,  the  average  death  rate  of  children  under  five  years  is 
103. 1  per  thousand;  in  New  Bedford,  where  the  percentage  of 
the  women  in  industry  is  22,  the  average  death  rate  for  chil- 
dren under  five  years  is  93.7  pen  cent.  This  high  mortality 
rate  for  children  may  not  be  entirely  the  result  of  the  employ- 
ment of  the  mothers,  but  may  be  caused  by  the  low  economic 

^See  W.  B.  Munro,  The  Government  of  American  Cities,  pp.  34-36. 

2 See  A.  F.  Weber,  The  Growth  of  Cities  in  the  Nineteenth  Century, 
pp.  299-300.  Although  there  is  a  larger  number  of  male  births,  the 
mortality  during  the  first  year  is  greater  among  males  than  females.  A 
still  greater  mortality  diminishes  the  number  of  males  in  their  adult  life, 
due  to  the  more  dangerous  occupations  in  which  they  are  engaged,  to 
vice,  and  to  excesses.  Moreover,  it  has  been  found  that  more  women 
migrate  to  cities  than  men. 

^See  Goodnow  and  Bates,  Municipal  Government,  pp.  29-31. 


352      STATE  AND  MUNICIPAL  GOVERNMENT 


(3)  statis- 
tics of 
population 
according 
to  age 


(4)  The  mar- 
riage rate 
in  cities 


condition  of  the  family.  In  such  cases  it  may  be  that  the 
mother's  work  may  result  in  improving  the  condition  of  the 
family  and  in  actually  lessening  the  rate  of  mortality.  Never- 
theless the  laws  of  some  states  regulate  the  employment  of 
women  by  limiting  their  hours  and  the  character  of  their  work 
because  it  has  been  demonstrated  that  long  hours  and  certain 
types  of  work  have  a  bad  result  upon  their  children. 

Cities  contain  a  larger  percentage  of  people  between  the 
ages  of  twenty-five  and  sixty-five  than  does  the  country  at 
large.  The  curve  of  ages  of  men  and  women  normally  approxi- 
mates a  pyramid — the  newly  born  forming  the  base,  the  very 
aged  the  apex.  The  curve  of  city  populations,  however,  more 
resembles  a  top.  The  heavy  mortality  of  infants  somewhat 
narrows  the  base,  the  large  immigration  between  the  years  of 
fifteen  and  sixty-five  tends  to  expand  the  curve  at  this  point, 
while  the  mortality  above  the  age  of  sixty,  being  greater  in 
cities  than  in  rural  districts,  tends  to  sharpen  the  top  of  the 
curve. ^  The  cities  therefore  contain  an  undue  proportion  of 
people  of  middle  age  and  at  the  height  of  their  mental  and 
physical  activity.  There  are  fewer  children  and  fewer  old 
people.  Hence  there  is  a  relatively  larger  percentage  of  their 
population  engaged  in  production  than  is  true  in  the  rural  com- 
munities. Thus  the  productive  population  is  burdened  with 
the  care  of  fewer  dependents,  whether  young  or  old,  than  is 
the  country  population.  As  a  result,  it  might  reasonably  fol- 
low that  the  population  of  the  city  would  be  more  alert  and 
animated  than  the  country  population. 

The  marriage  rate  in  cities  is  higher  per  thousand  than  that 
in  country  districts.  Several  reasons  may  account  for  this. 
In  the  first  place,  the  cities  contain  a  greater  percentage  of 
persons  of  marriageable  age  than  do  the  rural  districts.  In  the 
second  place,  economic  conditions,  which  give  the  city-dweller 
a  greater  income  power  than  the  country-dweller,  increase  the 
opportunity  for  marriage.  It  must  not  be  overlooked,  more- 
over, that  in  many  cities  the  industrial  life  gives  to  married 

^See  A.  F.  Wcbcr,  The  Growth  of  Cities  in  the  Nineteenth  Century, 
pp.  300  et  seq.  W.  B.  Munro,  The  Government  of  American  Cities,  p.  31, 
reproduces  a  chart  showing  the  age  curves  of  France  and  of  Paris. 


CHARACTERISTICS  OF  AMERICAN  CITIES     353 

women  the  chance  for  employment.  It  may  be,  too,  that  the 
statistics  of  cities  with  regard  to  marriages  performed  are  more 
accurately  kept  than  those  in  rural  districts.  Finally,  in  an 
appreciable  number  of  cases  the  inhabitants  of  rural  districts 
go  to  the  cities  to  have  the  marriage  ceremony  performed. 
Nevertheless,  in  spite  of  the  higher  marriage  rate  in  American 
cities,  there  is  a  relatively  smaller  proportion  of  married  per- 
sons in  cities  than  in  rural  districts.  This  may  be  explained 
in  several  ways.  In  the  first  place,  the  rural  immigration  to 
cities  is  largely  an  unmarried  one,  thus  leaving  an  undue  num- 
ber of  married  persons  in  the  country.  Not  infrequently  married 
couples  leave  the  city  and  take  up  their  residence  in  suburbs, 
and  so  decrease  the  number  of  married  persons  within  the  city. 
Finally,  the  higher  male  mortality  in  the  city  lowers  the  relative 
number  of  married  persons  and  adds  to  the  number  of  widows. 

The  birth  rate  in  cities  was  formerly  lower  than  that  in  (5)  The 
country  districts,  but  such  is  not  now  the  case.  In  general,  at  inatles^ 
the  present  time,  the  birth  rate  increases  with  the  density  of 
the  population  and  therefore  is  higher  in  cities  than  in  the 
rural  districts  and  in  the  country  at  large.  One  explanation 
which  was  formerly  put  for^vard  was  that  this  birth  rate  was 
due  to  the  fecundity  of  the  aliens,  but  it  has  been  found  that 
among  the  native-born  the  birth  rate  in  cities  is  higher  than  in 
country  districts.  A  more  obvious  and  correct  explanation  of  the 
phenomenon  is  that  the  city  contains  more  women  of  childbear- 
ing  age  than  does  the  country.  The  economic  influence  of  the 
city,  moreover,  must  not  be  overlooked.  Under  the  factory  sys- 
tem in  industry  a  man  may  marry  early  because  female  and 
child  labor  soon  become  a  help  rather  than  a  burden.^  How- 
ever, with  the  increasing  restrictions  on  the  labor  of  women  and 
children,  and  the  development  of  economic  foresight  and  social 
ambition,  there  is  no  guarantee  that  the  birth  rate  in  cities  will 
continue  to  remain  higher  than  that  in  country  districts.- 

^A.  F.  Weber,  The  Growth  of  Cities  in  the  Nineteenth  Century,  p.  341. 

2 Ibid.  p.  338,  quoting  A.  T.  Hadley,  Economics,  pp.  48-49:  "High 
comfort  and  low  birth-rate  are  commonly  associated,  because  comfort  is 
made  to  depend  upon  prudence.  Let  the  comfort  be  made  independent  of 
prudence,  as  in  the  case  of  the  pauper  or  criminal,  and  the  birth-rate  tends 


354     STATE  AND  MUNICIPAL  GOVERNMENT 


(6)  The 
death  rate 
in  cities 


[Attempts 
to  reduce 
the  death 
rate] 


The  death  rate  in  cities  is  everywhere  higher  than  in  the 
country.  Formerly  the  death  rate  not  only  exceeded  the  birth 
rate,  but  on  account  of  plague  and  pestilence  it  nearly  deci- 
mated certain  cities.  Not  until  the  nineteenth  century  could  it 
be  said  safely  that  the  average  death  rate  was  below  the  average 
birth  rate.  Before  the  nineteenth  century  the  growth  of  cities 
had  been  almost  entirely  from  migration,  a  large  part  of  which 
went  to  replace  the  loss  by  death.  As  might  be  expected,  the 
death  rate  in  cities  is  larger  for  children  under  one  year  of  age, 
but  the  statistical  tables  published  by  the  Census  Bureau  show 
that  the  death  rate  for  all  ages  is  greater  in  the  cities  than  in 
the  rural  districts,  and  with  the  exception  of  the  ages  between 
five  and  fifteen  is  greater  in  cities  of  more  than  100,000  popu- 
lation.^ It  thus  may  be  affirmed  that  the  death  rate  at  all  ages 
increases  with  the  density  of  the  population.  The  causes  for 
this  high  death  rate  are  not  far  to  seek.  For  children  under 
five  years  old  the  crowded  conditions  of  the  city,  the  lack  of 
proper  food  and  of  opportunity  for  play,  and  the  prevalence  of 
disease  all  account,  in  a  large  measure,  for  the  abnormally  large 
number  of  deaths.  For  adults  the  dangerous  occupations  which 
the  city-dwellers  engage  in  and  the  general  wear  and  tear  of 
urban  life  tend  to  increase  the  death  rate.  It  is  true  that  all  cities 
have  taken  heroic  measures  to  preserve  the  health  of  their  pop- 
ulations and  that  the  death  rate  in  all  cities  has  steadily  de- 
clined— in  New  York  from  25.8  per  thousand  in  1886  to  12.9 
per  thousand  in  1920,  and  in  other  cities  to  a  less  degree.- 

Wherever  large  aggregations  of  population  are  gathered  the 
problem  of  preserving  their  health  increases  almost  in  geomet- 
rical proportion  with  the  size  of  the  population.    The  obvious 

to  increase  rather  than  diminish.  ...  It  is  not  that  social  ambition  in 
itself  constitutes  a  greater  preventive  check  to  population  than  the  need 
of  subsistence;  but  that  the  need  of  subsistence  is  felt  by  all  men  alike, 
emotional  as  well  as  intellectual,  while  social  ambition  stamps  the  man 
or  the  race  that  possesses  it  as  having  reached  the  level  of  intellectual 
morality.  Ethical  selection  can  therefore  operate  on  the  latter  class  as 
it  does  not  on  the  former.  The  intellectual  man  has  possibilities  of  self- 
restraint  which  the  cniDlional  man  has  not." 

'.A.  F".  Weber,  The  Growth  of  Cities  in  the  Nineteenth  Century,  p.  346. 

2  See  W.  B.  Munro,  The  Government  of  American  Cities,  p.  3Q,  for  a 
table  compiled   from  the  reports  of   the  United  States  Census   Bureau. 


CHAfLACTERISTICS  OF  AMERICAN  CITIES     355 

dangers  which  threaten  such  concentration  of  population  as 
the  cities  show  are  to  be  found  in  the  inadequate  or  impure 
water  supply,  in  the  improper  disposition  of  the  w^astes,  and 
in  the  lack  of  general  cleanliness  of  the  community.  It  is  here 
that  the  cities  put  their  first  efforts,  and  it  is  from  the  result 
of  a  pure  water  supply,  a  scientific  disposition  of  the  city's 
waste,  and  clean  streets  that  most  of  the  immediate  results  in 
the  decline  of  the  death  rate  are  to  be  noticed.  Even  more 
care  is  necessary  than  this  with  regard  to  the  housing  of 
the  population,  the  provision  for  recreation  grounds,  the  in- 
spection of  food  and  of  the  milk  supply  in  particular,  and  its 
complement,  the  ice  supply.  IMoreover,  the  laws  regulating 
dangerous  occupations  and  the  employment  of  women  and 
children  in  industry  are  aimed  at  the  same  result ;  that  is,  to 
reduce  the  death  rate  and  to  improve  the  health  of  the  com- 
munity. The  success  of  these  movements  depends  upon  the 
efficiency  of  the  municipal  government.  As  Professor  Munro 
has  well  said,  the  death  rate  is  the  barometer  of  administrative 
efficiency.^ 

It  was  formerly  held  that  the  city-dweller  was  less  healthy  (7)  Health 
than  the  countryman.  The  crowded  conditions  under  which 
he  lived,  the  monotony  of  his  task  in  the  industrial  life  due 
to  specialization,  and  the  lack  of  outdoor  exercise  were  believed 
to  produce  a  weaker  type  than  that  which  developed  in  the 
country.  In  the  nineteenth  century,  however,  the  adoption  of 
compulsory  military  service  has  shown  that  in  France,  Ger- 
many, and  Italy  the  percentage  of  those  rejected  for  the  army 
on  account  of  physique  was  greater  for  the  country  districts 
than  for  the  towns.  In  the  United  States,  however,  the  physi- 
cal examinations  of  six  million  men  under  the  Selective  Service 
Act  showed  that  a  higher  percentage  of  city-dwellers  were  re- 
jected on  account  of  physical  defects.-    This  somewhat  reverses 

iW.  B.  Munro,  The  Government  of  American  Cities,  p.  40. 

2  Second  Report  of  the  Provost  Marshal  General  on  the  Operations  of 
the  Selective  Service  System  (1919),  p.  159,  quoted  by  W.  B.  Munro, 
The  Government  of  American  Cities  (3d  ed.),  pp.  43-44.  But  compare 
Goodnow  and  Bates,  Municipal  Government,  p.  28,  "Of  the  total  num- 
ber rejected  as  unfit,  63  per  cent  were  from  the  country  and  37  per  cent 
from  the  cities." 


356      STATE  AXD  MUNICIPAL  GOVERNMENT 


(8)  Intel- 
lectual 
standard 


the  former  theories  that  the  improved  sanitary  conditions,  food 
quality,  and  standard  of  living  produced  a  higher  type  of 
physical  development  in  the  cities  than  in  the  country. 

It  is  impossible  to  estimate  the  intellectual  standards  of  any 
two  parts  of  the  country.  About  the  only  criterion  is  the  test 
of  literacy.  The  census  of  1910  showed  that  4.9  per  cent  of 
the  total  white  population  of  the  United  States  was  illiterate. 
In  cities  of  more  than  25,000,  however,  the  percentage  of 
illiteracy  was  only  4.3  per  cent.  It  should  be  remembered, 
moreover,  that  to  the  cities  in  general  comes  the  great  mass 
of  illiterate  immigrants.  Nevertheless,  not  only  is  the  percent- 
age of  illiteracy  smaller  in  cities  than  in  the  country  at  large 
but  this  percentage  is  growing  less  and  probably  will  continue 
to  decline  at  an  increasing  rate.  The  Immigration  Act  of  19 13 
excluded  all  immigrants  unable  to  read  and  write.  In  the 
country  districts,  and  especially  in  the  cities,  the  school  facili- 
ties are  being  improved  and  compulsory  education  is  being  ex- 
tended by  increasing  both  the  years  of  school  attendance  and 
the  length  of  the  school  year.  In  addition  the  city  furnishes 
greater  opportunities  for  advanced  education  by  means  of 
night  schools,  settlement  classes,  and  vocational  schools.  More- 
over, city  life  greatly  handicaps  the  illiterate  in  economic 
advancement,  which  is  quite  universally  conditioned  by  the 
ability  at  least  to  read  and  write. 

The  ability  to  read  and  write  is,  on  the  whole,  a  poor 
standard^for  Standard  by  which  to  judge  the  intellectual  ability  of  a  com- 

inteiii-         munity.     The   education   of   the   city-dweller   has   been   well 

gence]  -^  •' 

described  by  J.  A.  Hobson  in  the  following  words : 


[Literacy 


That  town  life,  as  distinguished  from  town  work,  is  educative  of 
certain  intellectual  and  moral  qualities,  is  evident.  .  .  .  While  there 
is  reason  to  believe  that  town  work  is  on  the  average  less  educative 
than  country  work,  town  life  more  than  turns  the  scale.  ...  If, 
however,  we  examine  a  little  deeper  the  character  of  town  education 
and  intelligence,  certain  tolerably  definite  limitations  show  them- 
selves. School  instruction,  slightly  more  advanced  than  in  the  coun- 
try, is  commonly  utilized  to  sharpen  industrial  competition  and  to 
feed  that  sensational  interest  in  sport  and  crime  which  absorbs  the 
attention  of  the  masses  in  their  non-working  hours ;  it  seldom  forms 


CHAIL^CTERISTICS  OF  AMERICAN  CITIES     357 

the  foundation  of  an  intellectual  life  in  which  knowledge  and  taste 
are  reckoned  in  themselves  desirable.  .  .  .  Scattered  and  unrelated 
fragments  of  half-baked  information  form  a  stock  of  "knowledge" 
with  which  the  townsman's  glib  tongue  enables  him  to  present  a  showy 
intellectual  shop-front.  Business  smartness  pays  better  in  the  town, 
and  the  low  intellectual  qualities  which  are  contained  in  it  are  edu- 
cated by  town  life.  The  knowledge  of  human  nature  thus  evoked  is 
in  no  sense  science ;  it  is  a  mere  rule-of-thumb  affair,  a  thin  mechani- 
cal empiricism.  The  capable  business  man  who  is  said  to  understand 
the  "world"  and  his  fellow-men,  has  commonly  no  knowledge  of 
human  nature  in  the  larger  sense,  but  merely  knows  from  observation 
how  the  average  man  of  a  certain  Hmited  class  is  hkely  to  act  within 
a  narrow  prescribed  sphere  of  self-seeking.  Town  hfe,  then,  strongly 
favors  the  education  of  certain  shallow  forms  of  intelligence.^ 

Although  the  average  income  of  the  city-dweller  is  larger  (9)0wner- 
than  the  countryman's,  he  seldom  owns  his  home.  According  property 
to  the  Census  of  1910,  although  three  quarters  of  the  entire 
wealth  of  the  whole  country  was  to  be  found  in  cities,  a  small 
part  of  the  city-dwellers  actually  own  their  houses — in  Greater 
New  York  only  11.7  per  cent,  and  in  the  borough  of  Man- 
hattan only  2.9  per  cent.  The  effect  of  this  is  to  make  the 
city-dweller  less  conservative  than  he  who  lives  in  the  country. 
Since  the  greater  weight  of  taxation  falls  upon  real  estate,  the 
majority  of  the  voters  in  the  city  feel  only  indirectly  the 
increase  of  taxation.  They  are  thus  much  more  ready  to 
sanction  increased  expenditures  and  to  demand  improved  and 
better  living  conditions  than  are  those  who  live  in  the  country. 

About  the  only  index  to  the  moral  standards  of  a  community  do)  Moral 
is  the  amount  of  crime  committed  in  it.  In  this  respect  the  of  the  citV 
city  has  a  worse  record  than  the  country.  The  number  of 
arrests  for  crime  increases  generally  in  proportion  to  the 
density  of  the  population,  and  the  amount  of  crime  in  the 
.^reat  cities,  particularly  the  seaports,  is  appalling.  Several 
mitigating  circumstances,  however,  may  be  mentioned.  In  the 
first  place,  since  the  majority  of  the  population  is  in  the  cities 
it  would  be  natural  to  find  a  greater  amount  of  crime,  but  the 

lA.  F.  Weber,  The  Growth  of  Cities  in  the  Nineteenth  Century,  p.  3qq, 
quoting  J.  A.  Hobson,  The  Evolution  of  Modern  Capitalism,  pp.  338-339. 


358     STATE  AND  MUNICIPAL  GOVERNMENT 

percentage  of  crime  is  more  than  the  larger  proportion  of  the 
population  justifies.  When  the  crimes  are  analyzed,  however, 
it  is  found  that  the  crimes  against  the  person — that  is,  assaults 
and  violence — are  not  much  above  the  proportion  according 
to  population.  But  crimes  against  property  are  far  above  their 
true  proportion,  especially  in  the  case  of  the  crime  of  larceny. 
This,  in  part,  may  be  explained  by  the  larger  opportunities: 
by  far  the  greater  part  of  the  country's  wealth  in  personal 
property  is  to  be  found  in  the  cities.  It  should  be  remembered, 
moreover,  that  criminals  naturally  gravitate  to  the  city,  for  the 
cities  give  them  a  greater  opportunity  to  follow  a  career  of 
crime.  Finally,  the  population  of  the  cities  is  subject  to  more 
violent  alterations  of  condition :  employment  is  less  continuous 
in  the  city  than  in  the  country;  wages  in  the  city  may  be 
higher,  but  they  are  less  certain ;  and  men  may  be  thrown  out 
of  employment  into  idleness,  which  enhances  the  temptation 
for  crime.  It  is  certainly  true  that  there  are  more  crimes 
committed  in  the  city  in  proportion  to  its  population  than 
in  the  country,  but  it  is  doubtful  whether  the  proportion  of 
criminals  is  greater.^ 
(ii)  Hu-  The  cities,  on  the  other  hand,  are  the  centers  of  great  chari- 

manitarian     ^.  ,,  ..  -^  r  •       t  -        t  • 

movements  tics  and  humanitarian  movements.  JNiore  is  done  in  the  city 
to  relieve  poverty  and  suffering  and  to  improve  the  social  and 
living  conditions  of  all  classes  than  is  possible  in  any  country 
district.  The  concentration  of  wealth,  the  leisure  which  this 
wealth  gives  to  certain  classes,  and,  perhaps,  the  acute  con- 
sciousness of  the  evils  to  be  remedied,  brought  about  by  the 
density  of  the  population,  compel  the  city-dweller  to  a  higher 
sense  of  his  obligations  to  the  community  than  is  found  in  the 
country.  The  cities,  to  some  observers  at  least,  are  cesspools 
of  crime  and  vice ;  to  others  they  are  the  source  of  many  of  the 
most  charitable  and  humanizing  movements  in  the  whole  coun- 
try. Both  observers  are  in  part  correct:  the  cities  present 
most  violent  contrasts;  in  them  extremes  meet.  From  the 
resolution  of  the  contending  forces  in  the  cities,  however,  has 
come  much  of  the  progress  which  has  made  the  United  States 
so  remarkable. 

'A.  V.  VVcIkt,  The  Growth  of  Cities  in  the  Nineteenth  Century,  p.  408. 


in  cities 


CHAPTER  XX 

THE  DEVELOPMENT  OF  MUNICIPAL  GOVERNMENT 
IN  THE  UNITED  STATES 

Chartered  communities  have  existed  in  the  United  States 
since  1641.  There  are  thus  two  hundred  and  sixty  years  of 
municipal  experience  through  which  it  is  possible  to  trace  the 
development  of  municipal  institutions.  Beginning  in  colonial 
times  with  a  few  boroughs  of  the  English  type,  American 
municipalities  have  increased  in  number  until  the  United 
States  contains  more  cities  than  any  other  country  in  the  world 
and  has  led  the  way  in  adopting  new  features  for  governing  its 
cities.  These  experiments  have  not  always  been  happy ;  in- 
deed, Lord  Bryce  described  the  government  of  American  cities 
as  the  "one  conspicuous  failure"  in  our  system.  It  is  thus 
advisable  to  trace  the  development  of  city  government  in  the 
United  States  through  these  two  centuries  and  a  half  in 
order  to  point  out  the  errors  of  previous  generations  and  to 
understand  the  problems  which  face  the  present. 

The  Colonial  Period^ 

Before  the  American  Revolution  there  were  about  twenty  coioniai 
chartered  boroughs  in  the  English  colonies  of  North  America.-  ''°'°"2''® 
The  earliest  community  to  receive  a  charter  was  Agamenticus, 
Maine,  chartered  by  Sir  Fernando  Gorges  in  1641.  In  1647 
Gorges  granted  a  charter  to  Kittery,  Maine,  and  in  1705  the 
village  of  Bath,  North  Carolina,  received  a  charter.  Aside  from 
these  little  hamlets  all  the  chartered  communities  in  the  colonies 
were  to  be  found  in  New  York,  New  Jersey,  Pennsylvania, 

^One  of  the  best  brief  treatments  of  this  subject  is  given  by  Pro- 
fessor J.  A.  Fairlie,  Essays  in  Municipal  Administration,  chap.  iv. 

-For  a  list  of  colonial  boroughs  see  J.  A.  Fairlie,  Essays  in  Municipal 
Administration. 

359 


36o     STATE  AND  MUNICIPAL  GOVERNMENT 

Maryland,  and  Virginia.  The  last  place  to  be  chartered  before 
the  American  Revolution  was  Trenton,  New  Jersey.  Although 
the  advantages  of  incorporation  were  recognized,  the  movement 
had  gained  little  headway  during  colonial  times.  In  New  Eng- 
land the  system  of  town  government,  which  from  1694  allowed 
the  towns  the  privileges  of  corporations,  gave  greater  freedom 
than  any  formally  granted  charter.  After  the  middle  of  the 
eighteenth  century  the  opposition  of  the  colonists  was  probably 
a  deterrent  to  the  provincial  governors  in  granting  charters. 
Whatever  the  practice  of  the  nineteenth  and  twentieth  centuries 
has  developed  in  municipal  government,  the  foundation  is  to 
be  found  in  these  colonial  charters, 
organiza-  The  colonial  charters  were  granted  to  the  boroughs  not  by 
thTw^oniai  the  assembly  of  the  colony,  but  by  the  governor.  These  char- 
charters  j.gj.g  created  corporations  and  gave  the  boroughs  the  right  of 
perpetual  succession,  the  right  to  receive,  hold,  and  dispose  of 
lands  and  chattels,  the  right  to  sue  and  to  be  sued  in  the  courts 
of  the  colony,  and  the  right  to  have  a  common  seal.  The 
official   title  of  the  corporations  was  generally  "the  mayor, 

aldermen  and  commonalty  of ." 

[The  In  the  great  majority  of  the  boroughs  the  mayor  was  regu- 

^^^'^'^  larly  appointed  by  the  governor  of  the  province.  His  term 
was  fixed  at  one  year,  but  reappointments  were  frequent.  He 
presided  at  the  meeting  of  the  aldermen  and  common  council, 
but  had  no  power  of  veto.  He  was  charged  with  the  execution 
of  the  laws,  and  in  some  boroughs  was  given  control  over  grant- 
ing certain  licenses.  In  general  he  had  no  power  of  appoint- 
ment, but  not  infrequently  he  himself  exercised  the  functions 
of  minor  offices. 
[The  In  the  colonial  boroughs  the  number  of  aldermen  was  small 

—  never  over  eight,  and  more  generally  live  or  six.  The  alder- 
men were  chosen  in  various  ways.  Not  a  few  of  the  boroughs 
were  "close  corporations";^  that  is,  having  the  power  to  elect 
their  successors.  In  such  corporations  the  aldermen  were 
chosen  by  the  council;  in  other  boroughs  they  were  elected 
popularly  by  the  freemen — generally  at  large,  although  in 
Albany  and  New  York  they  were  chosen  by  districts. 
>  Annapolis,  New  York,  and  Philadelphia. 


aldermen] 


MUNICIPAL  DEVELOPMENT  361 

The  councilmen  were  commonly  more  numerous  than  the  [The 
aldermen  and,  in  close  corporations,  were  chosen  by  the  alder-  *^°"°"    ®°-l 
men,  mayor,  and  recorder.    Elsewhere  they  were  elected  by 
popular  vote.    The  aldermen  and  councilmen  formed  one  body, 
which,  in  order  to  transact  business,  must  have  the  mayor  and 
a  certain  number  of  aldermen  present. 

The  recorder  was  supposed  to  be  the  legal  adviser  of  the  [The 
government,  but  there  was  no  requirement,  except  in  Norfolk,  '^^^°^  "■' 
that  he  should  be  learned  in  law.  In  close  corporations  he 
was  chosen  by  the  corporations ;  elsewhere  he  was  appointed 
by  the  governor  of  the  colony.  There  were  other  officers  also 
— a  town  clerk  in  every  borough ;  a  treasurer  in  most  of  them, 
although  an  officer  is  rarely  mentioned  in  the  charters;  and  in 
New  York  and  Albany,  in  boroughs  which  were  conterminous 
with  counties,  there  was  a  sheriff.  In  the  charters  for  some  of 
the  boroughs  fines  were  prescribed  for  failure  or  refusal  to 
accept  office,  and  in  Philadelphia  the  fines  were  often  paid 
in  preference  to  service. 

The  most  marked  point  of  difference  between  the  colonial  [The 
boroughs  and  the  modern  city  was  the  presence  of  freemen.  "^^^"^"-I 
As  a  rule,  the  corporation  was  given  the  power  to  admit  free- 
men to  the  corporation.  Women,  as  well  as  men,  were  eligible, 
and  small  fees  were  charged  for  this  privilege.  The  privileges 
of  the  freedom  of  the  corporation  were  twofold.  In  most 
boroughs  the  freemen  had  the  monopoly  in  certain  trades, 
which,  in  Albany,  gave  them  a  great  advantage  in  the  Indian 
trade;  all  freemen,  moreover,  were  members  of  the  electorate. 
In  the  close  corporations  this  franchise  was  of  little  impor- 
tance, as  the  vacancies  in  the  governing  board  were  filled  by 
the  remaining  members.  In  other  boroughs  the  franchise  was 
extended  to  all  freemen  and  as  a  rule  to  freeholders  or  those 
who  could  qualify  by  the  possession  of  a  small  amount  of 
personal  property. 

The  colonial  boroughs  were  judicial  rather  than  administra-  Functions 
tive  organizations,  the  result  partly  of  English  precedent  and  colonial 
partly  because  few  of  the  modern  municipal  functions  were  boroughs 
performed.    The  mayor,  recorder,  and  aldermen  constituted  a 
court  which  had  jurisdiction  over  petty  cases.     These  same 


362      STATE  AND  MUNICIPAL  GOVERNMENT 

officers  were  also  members  of  the  county  courts.  The  legisla- 
tive functions  of  the  councils  were  small ;  they  might  make 
ordinances  "for  the  good  rule  and  government  of  the  body  cor- 
porate," but  in  some  instances  there  was  a  requirement  that 
these  must  be  submitted  to  the  provincial  governor  for  ap- 
proval. In  administration  the  common  council  took  charge  of 
the  markets ;  they  had  power  to  keep  streets  free  from  rubbish 
and  obstructions,  and  in  a  few  cases  streets  were  laid  out  by 
their  authority.  The  water-supply  was  derived  during  colonial 
times  entirely  from  pumps  and  wells,  although  in  1774  the 
council  at  Albany  undertook  a  primitive  reservoir  system.  The 
preservation  of  peace  and  order  by  means  of  the  patrol  of 
the  streets  was  hardly  begun  during  the  colonial  period,  yet 
New  York  and  Philadelphia  had  established  night  watchmen 
before  the  middle  of  the  eighteenth  century.  Street  lighting  did 
not  commence  until  1761  in  New  York,  and  then  was  consid- 
ered a  part  of  the  police  function.  There  were  no  public  schools 
,  in  any  of  the  boroughs,  no  parks,  no  libraries,  no  administration 
of  charitable  relief. 
Finances  With  such  limited  municipal  functions  it  is  not  surprising 

that  the  financial  operations  were  also  limited.  The  revenue 
of  the  borough  was  derived  largely  from  fines,  licenses,  and 
fees  for  the  markets,  ferries,  and  docks.  The  early  charters 
gave  no  authority  to  levy  direct  taxes,  but  the  colonial  legis- 
latures soon  extended  the  power  of  taxation,  and  by  the  middle 
of  the  eighteenth  century  the  direct  tax  became  a  definite  and 
regular  part  of  the  municipal  revenue. 

Municipal  Development  from  1775  to  1820 

Character-        The  establishment  of  the  independence  of  the  United  States 
venod      '^  brought  about  certain  significant  changes  in  municipal  govern- 
ment.^   The  most  important  change  was  the  substitution  of 
the  state  legislature  for  the  governor  in  granting  city  charters. 

'  The  best  brief  treatments  of  municipal  development  are  given  by 
J.  A.  Fairlie,  Municipal  .'\dministration,  chap,  v,  and  W.  B.  Munro,  The 
Government  of  American  Cities  (t,(\  cd.),  chap.  i.  ,'\  more  extended  treat- 
ment is  piven  by  Eugene  McQuillin,  Treatise  on  the  Law  of  Municipal 
Corporations,  Vol.  I,  pp.  1-159. 


MUNICIPAL  DEVELOPMENT  363 

In  those  cities  which  were  incorporated  immediately  after  the 
Revolution,  charters  were  issued  not  by  the  governor  of  the 
state  but  by  the  state  legislature.  This  established  a  precedent 
which  has  been  followed  ever  since  and  which  has  had  far- 
reaching  results.  A  charter  granted  by  the  state  legislature  is 
like  any  other  statute.  It  is  thus  subject  to  legislative  amend- 
ment or  revocation.  This  change  sets  the  precedent  for  the 
mischievous  interference  in  municipal  affairs  which  charac- 
terizes the  middle  period  of  American  municipal  government. 
Another  change  was  found  in  the  disappearance  of  the  close 
corporation.  None  of  the  newly  chartered  cities  were  allowed  to 
establish  close  corporations,  and  the  state  legislatures  amended 
such  charters  to  provide  for  a  popularly  elected  council.  This 
is  an  example  of  the  supremacy  which  the  state  legislatures 
exercised  over  the  municipalities.  Not  even  the  existing  char- 
ters which  had  been  granted  by  the  royal  governors  were  free 
from  legislative  interference. 

The  organization  and  powers  granted  by  the  state  legisla-  Municipal 
tures  in  the  early  charters  do  not  greatly  differ  from  those  of  t[on  under 
the  colonial  charters.  By  1796,  however,  the  influence  of  the  *?|/^^* 
national  Constitution  was  clearly  felt,  and  the  forms  of  national  charters 
government  were  bodily  transferred  to  the  cities.  The  Balti- 
more charter  of  1797  thus  provided  for  a  bicameral  city  legis- 
lature. The  council  was  composed  of  two  members  chosen 
annually  from  each  of  the  eight  wards,  while  the  other  house 
was  chosen  by  an  electoral  college,  which  also  selected  the 
mayor.  In  addition,  the  mayor  was  given,  like  the  president 
of  the  United  States,  the  veto  of  ordinances  passed  by  the 
council.  But  this  was  a  novelty  and  was  not  widely  adopted 
until  much  later.  Perhaps  more  far-reaching  than  any  formal 
frame  of  government  was  the  general  feeling  that  checks  and 
balances  should  be  set  up  to  insure  the  separation  of  the  ex- 
ecutive (that  is,  the  mayor)  from  the  legislative  department 
(that  is,  the  common  council).  As  Professor  Munro  has  well 
pointed  out,^  there  was  no  reason  for  such  a  separation  of 
powers  in  municipal  government.  It  was  necessary  only  in  the 
ultimate  power  in  the  state.  In  such  subordinate  institutions  as 
^The  Government  of  American  Cities,  pp.  7-9. 


364     STATE  AND  MUNICIPAL  GOVERNMENT 


Municipal 
functions 


Growth  of 
cities 


Municipal 
politics 


municipalities  it  had  no  place.  Yet ''  the  wisdom  of  the  framers  " 
is  still  invoked  to  perpetuate  the  bicameral  system  and  the 
separation  of  the  legislative  and  administrative  powers. 

Until  1820  the  functions  undertaken  by  the  municipalities 
increased  in  degree  rather  than  in  number.  Few  new  duties 
were  taken  on,  and  only  the  somewhat  slow  increase  in  popula- 
tion compelled  the  cities  to  extend  their  functions  quantita- 
tively. Thus  New  York  City,  with  a  population  of  100,000 
in  1810,  expended  only  about  Sioo,ooo. 

In  1820  there  were  only  thirteen  towns  in  the  United  States 
with  more  than  8000  inhabitants  and  only  six  cities  with  more 
than  20,000  population.  The  total  urban  population  was  less 
than  500,000,  or  barely  5  per  cent  of  the  entire  population 
of  the  country.^ 

In  the  first  decades  after  1800  municipal  politics  became 
subordinated  to  national  and  state  politics.  Two  reasons  may 
account  for  this:  in  the  first  place,  the  functions  of  the  city 
were  not  important  enough  to  cause  the  formation  of  local 
parties,  and,  secondly,  the  interference  of  the  state  in  municipal 
affairs  gave  an  opportunity  to  reward  success  in  state  political 
campaigns  by  the  "spoils"  in  the  cities. 


Character- 
istics 


Municipal 
organiza- 
tion 


Municipal  Development  from  1820  to  1850 

This  period  is  characterized,  first,  by  the  changed  method 
of  choosing  the  mayors.  The  mayors  in  some  cities  had  always 
been  chosen  by  the  common  council,  but  in  182 1  the  constitu- 
tion of  New  York  established  this  as  a  general  rule  for  the 
state.  The  period  is  also  characterized  by  a  further  extension 
of  the  principles  of  democracy.  In  the  charters  issued  to 
Boston  and  St.  Louis  in  1822  and  to  Detroit  in  1824  the  mayors 
were  chosen  by  popular  vote.  Finally,  during  this  period  most 
cities  did  away  with  the  property  requirements  and  established 
manhood  suffrage. 

Although  in  an  increasing  number  of  cities  the  mayors  were 
popularly  elected,  they  had  received  very  little  enlargement 
of  their  powers.     'Ihe  power  of  vetoing  ordinances  was  not 


ij.  A.  Fairlic,  Municipal  Administration,  j).  80. 


MUNICIPAL  DEVELOPMENT  365 

extended,  nor  was  the  appointing  power  of  the  mayor  enlarged. 
Choice  by  election  did  give  the  mayor  a  more  independent 
position.  It  prepared  the  way,  however,  for  the  enlargement 
of  his  powers  which  came  when  the  council  had  demonstrated 
its  inefficiency. 

As  a  general  thing  single  chambers  still  were  the  rule  in  the  The 
municipal  councils,  although  the  charter  of  Boston  provided  ^"ncTi^^ 
for  a  bicameral  council.  In  the  New  York  charter  of  1830, 
however,  the  bicameral  system  was  adopted,  "for  the  same 
reason  which  has  dictated  a  similar  division  of  power  into  two 
branches,  each  checking  and  controlling  the  other,  in  our 
general  government."^  This  charter  also  provided  for  the 
establishment  of  separate  departments  by  the  council,  but  this 
provision  proved  too  vague,  and  the  municipal  functions  con- 
tinued to  be  performed  by  committees  of  the  council.  This 
charter,  moreover,  gave  the  mayor  the  right  to  veto  the 
ordinances  passed  by  the  council. 

With  the  increase  of  population  in  cities  municipal  functions  Municipal 
were  extended  in  both  number  and  character.  The  question  of 
water  supply  became  pressing,  and  New  York  City  constructed 
the  Croton  aqueduct.  As  has  been  shown,  most  cities  had  estab- 
lished in  the  previous  period  a  night  watch,  and  several  others 
now  set  up  during  these  years  small  bodies  of  rather  ill- 
organized  and  inefficient  day  police.  Fire  protection  was  be- 
coming general  and  was  performed  by  volunteer  companies, 
although  the  municipalities  in  some  instances  furnished  the 
apparatus.  In  a  few  cases  the  municipal  councils  appointed 
the  school  boards,  but  in  general  these  were  considered  separate 
from  the  municipal  government. 

The  extension  of  municipal  functions  necessitated  increasing  Finance 
attention  to  finance.  Most  of  the  city  charters  gave  a  grant 
of  general  taxing  power  to  the  cities  instead  of  relying  upon 
the  system  of  special  authorization  for  special  purposes.  The 
power  was  subject  to  definite  limitations.  First,  cities  were 
limited  to  a  certain  percentage  of  the  assessed  valuation  of 
the  property  in  the  city.    For  extraordinary  purposes — to  meet 

ij.  A.  Fairlie,  Municipal  Administration,  p.  83,  quoting  Address  of 
the  Convention  of  1829. 


366     STATE  AND  MUNICIPAL  GOVERNMENT 


The  spoils 
system 


Character- 
istics 


Municipal 
functions 


expenses  beyond  the  amount  which  could  be  so  obtained — 
recourse  to  the  state  legislature  was  necessary.  Moreover, 
there  was  always  in  every  city  charter  a  limitation  upon  the 
objects  of  taxation,  and  no  municipality  could  raise  money  for 
purposes  other  than  that  specified  by  the  charter.  This  seri- 
ously hampered  the  development  of  municipal  functions  and 
required  frequent  appeals  to  the  state  legislature,  thus  per- 
petuating the  system  of  state  interference  in  municipal  affairs. 
In  so  doing,  it  put  the  city  at  the  mercy  of  the  legislature  and 
reduced  the  discretion  of  the  city  authorities. 

During  this  period  the  spoils  system  gained  a  firm  hold  in 
municipal  affairs.  In  most  of  the  cities  appointments  rested 
with  the  council,  which  was  generally  chosen  from  wards.  The 
names  and  organization  of  the  national  parties  were  transferred 
to  municipal  contests,  and  the  council  members  soon  regarded 
these  appointments  as  legitimate  patronage  to  be  used  to 
further  their  political  fortunes.  In  addition,  the  system  of 
rotation  in  office  was  extended  to  municipal  officers.  Thus,  at 
the  very  beginning  of  the  extension  of  municipal  functions 
an  inefficient  method  of  the  selection  of  officers  was  fastened 
upon  the  cities. 

Municipal  Development  from  1850  to  1870 

During  this  period  there  was  a  steady  growth  of  the  urban 
population.  This  increase  began  to  force  the  undertaking  of 
new  municipal  functions  and  the  very  rapid  development  of 
those  functions  which  had  previously  been  performed  by  the 
cities.  The  period  also  shows  a  constantly  increasing  tendency 
on  the  part  of  the  state  legislatures  to  interfere  with  municipal 
affairs  and  to  divide  the  city  government  into  independent 
departments.  Along  with  this  came  a  decline  in  the  impor- 
tance and  character  of  the  municipal  councils.  Finally,  this 
period  shows  the  spoils  system,  if  not  at  its  height,  flourishing 
almost  unchecked. 

As  might  be  expected,  the  concentration  of  population  in 
New  York  City,  which,  in  1850,  had  500,000  inhabitants, 
compelled  the  city  to  improve  its  means  for  protection.  Con- 
sequently, in  1845  ^cw  York  established  the  first  disciplined 


MUNICIPAL  DEVELOPMENT  367 

police  force  and  also  a  paid  fire  department.  Municipal  water- 
works were  established  in  Boston,  Chicago,  and  Baltimore. 
Other  cities  were  soon  obliged  to  follow  New  York  in  the 
establishment  and  maintenance  of  a  police  force.  The  ordinary 
functions  of  city  government  which  had  been  more  or  less 
irregularly  attempted  since  colonial  times — that  is,  the  care 
of  the  streets  and  the  relief  of  the  poor — were  rapidly  ex- 
tended, and  most  cities  made  a  beginning  of  a  school  system. 

Although  the  forms  of  municipal  organization  remained  al-  changes  in 

...        .  ,  .    ,    ,       ,.  J   organiza- 

most  unchanged,  they  were  overlaid  with  special  bodies  and  tion : 
instruments   created   by   the   legislature.     The   council,   while 
nominally  in  control  of  the  city's  policy,  as  a  matter  of  fact 
was  losing  power.    This  was  accomplished   in  various   ways. 

It  has  been  noted  that  many  cities  were  forced  to  appeal  to  (i)  special 
the  legislature  for  additional  powers  in  order  to  perform  the 
functions  which  were  necessary  and,  particularly,  to  finance 
these  functions.  It  has,  moreover,  been  seen  that  the  state 
legislatures  from  the  very  first  regarded  the  cities  as  merely 
subordinate  areas  of  administration  and  the  city  charters  as 
mere  statutes  subject  to  amendment  at  any  time.  These  legis- 
lative amendments  might  be  either  formal  amendments  of  the 
city  charter  or  special  statutes  passed  for  some  particular  pur- 
pose or  for  some  particular  city.  During  this  period  the  num- 
ber of  special  statutes  increased  enormously  and  to  such  an 
extent  that  the  city  councils  were  in  many  instances  reduced 
almost  to  impotency.  The  dangers  of  this  habit  were  recognized, 
and  several  states^  by  constitutional  amendment  forbade  the 
practice.  None  of  these  states,  however,  contained  any  large 
cities,  and  in  none  of  them  was  the  problem  acute. 

Many  of  the  new  functions  which  were  given  to  cities  by  (2)  Growth 
special  statutes  or  charter  amendments  were  conferred  not  departments 
upon  the  city  council  but  upon  newly  created  departments, 
independent  of  the  municipal  council.  In  previous  periods  it 
has  been  seen  that  the  schools  and  poor  relief  were  more  or 
less  independent  of  the  action  of  the  council.  Now,  however, 
almost  every  new  function  conferred  upon  a  city  was  vested 
in  an  independent  department.  Thus,  in  1849  the  new  charter 
^Arkansas,   Florida,   Iowa,   Kansas,   Nebraska,   and  Ohio. 


368     STATE  AND  MUNICIPAL  GOVERNMENT 


f3)  Legis- 
lative com- 
mission 


Reasons 
for  these 
changes  in 
organiza- 
tion 


for  New  York  City  created  twelve  executive  departments, 
whose  heads  were  chosen  by  popular  vote.  Similar  changes 
were  made  in  Cleveland,  and  in  1851  the  water  board  of 
Chicago  was  established  with  an  independent  power  to  borrow 
money.  Another  example  of  the  declining  position  of  the  council 
is  seen  in  the  limited  power  of  veto  which  was  conferred  upon 
the  mayor. 

During  this  period,  moreover,  the  powers  of  the  council  were 
limited  still  further  through  the  establishment  of  special  legis- 
lative commissions  or  boards,  which  were  appointed  not  by 
municipal  but  by  state  authority.  For  example,  in  1857  a 
state  park  commission  was  established  for  New  York  City  and 
a  state  metropolitan  police  board  for  New  York  and  Brooklyn ; 
in  i860  a  state  police  board  was  set  up  for  Baltimore  and  in 
1861  for  Chicago;  in  1865,  state  commissions  were  established 
for  New  York  City  for  the  fire  and  health  departments  and 
for  the  licensing  of  saloons;  and  in  1870  construction  of  the 
new  city  hall  in  Philadelphia  was  intrusted  to  a  state  commis- 
sion. These  commissions  were  all-powerful  within  the  fields 
granted  them  by  the  statutes,  and  in  New  York  they  went  so 
far  as  to  control  five  sixths  of  the  municipal  expenditures.^ 

Various  reasons  are  assigned  for  this  condition  of  affairs. 
The  transfer  from  council  committees  to  popularly  elected  de- 
partments was  perhaps  the  result  of  the  wave  of  democracy, 
which  reached  its  height  in  1850.  But  this  was  not  uncon- 
nected with  the  inefficiency  of  the  municipal  council.  As  has 
been  shown,  municipal  politics  were  party  politics,  and  the 
men  chosen  to  the  city  councils  were  not  of  such  a  caliber  as 
would  lead  thoughtful  men  to  intrust  them  with  the  new  func- 
tions which  the  city  was  obliged  to  attempt.  The  councils  had 
shown  themselves  particularly  inefficient  and  careless  of  the 
city's  best  interests  in  the  granting  of  franchises  and  the  mak- 
ing of  contracts,  and  in  the  functions  which  still  remained  in 
their  hands  they  proved  inefficient  and  were  constantly  subject 
to  criticism.  It  cannot  be  said,  however,  that  the  legislative 
commissions  which  were  appointed  to  remedy  the  maladminis- 
tration and  mismanagement  of  the  councils  were  a  very  great 
^J.  A.  Fairlic,  Munici{)al  Administration,  p.  90. 


MUNICIPAL  DEVELOPMENT  369 

improvement.  Since  these  were  under  the  control  of  the  state 
government  they  were  subject  to  the  violent  alterations  and 
disorganizations  consequent  upon  any  charge  in  the  political 
complexion  of  that  government. 

The  spoils  system  was  pretty  thoroughly  fastened  upon  the  The  spoils 
cities  before  the  beginning  of  this  period.  With  the  enlarge-  ^^^  ^" 
ment  of  the  municipal  functions  came  an  opportunity  for  the 
extension  of  the  spoils  system.  The  patronage  of  a  large  city 
was  a  prize  which  both  parties  were  anxious  to  obtain.  If  this 
were  left  to  the  disposition  of  the  local  authorities  the  success- 
ful party  in  the  state  campaign  would  be  defrauded  of  what 
it  considered  its  legitimate  perquisite.  This,  perhaps,  is  the 
real  explanation  of  the  growth  of  commissions  appointed  by 
the  state  authorities  and  the  state  control  of  the  administrative 
functions  of  the  city.  It  resulted  to  an  increasing  degree  in 
the  subordination  of  city  issues  to  the  necessities  of  the  cam- 
paigns of  the  national  parties,  and  it  prevented  the  develop- 
ment of  any  purely  municipal  parties. 

Municipal  Development  from  1870  to  1900 

The  decades  from  1870  to  1900  are  characterized  by  the  character- 
continued  growth  of  cities  and  the  consequent  extension  of  '^  '"^^ 
municipal  functions.  Of  even  more  importance,  however,  are 
the  first  attempts  at  the  reorganization  of  the  framework  of 
municipal  governments.  The  first  years  of  the  period  are  dis- 
tinguished by  notorious  examples  of  misgovernment  in  the 
largest  city  in  the  United  States,  New  York,  and  other  cities 
in  turn  suffered  to  a  less  degree,  but  these  evils  concentrated 
public  attention  on  them  and  forced  reform. 

In  1870  there  were  226  cities,  with  a  population  of  more  Growth  of 

cities 

than  8000 ;  in  1880  there  were  286  such  cities,  which  contained 
22.5  per  cent  of  the  entire  population  of  the  United  States; 
and  there  were  nearly  a  hundred  cities  with  a  population  of 
more  than  20,000.  Ten  years  later  the  number  of  cities  with 
a  population  of  more  than  8000  had  risen  to  448,  and  there 
were  28  cities  with  a  population  of  more  than  100,000,  15  of 
200,000  or  more,  and  6  with  a  population  of  more  than 
500,000.    These  vast  populations  were  recruited  not  simply 


370     STATE  AND  MUNICIPAL  GOVERNMENT 


Limitations 
on  state 
interference 


Reorganiza 
tion 


[Appoint 
ments] 


from  natural  increase  and  by  migration  from  the  country  dis- 
tricts but  also  from  a  huge  alien  influx.  Hence  the  problems 
of  these  decades  are  complicated  by  the  presence  of  large 
numbers  of  aliens  who,  through  the  lax  enforcement  of  the 
naturalization  laws  too  often  become  subject  to  the  political 
control  of  corrupt  leaders. 

In  this  period  an  increasing  number  of  states  adopted  con- 
stitutions prohibiting  the  passage  of  special  statutes  for  cities/ 
and  two  states,  Missouri  and  California,  passed  amendments 
allowing  the  cities  to  frame  their  own  charters. 

These  decades  saw  many  new  charters  granted  to  cities  and 
many  amendments  to  the  existing  charters.  The  general  char- 
acteristic of  these  amendments  was  toward  strengthening  the 
authority  of  the  mayor,  thus  still  further  weakening  the  powers 
of  the  council.  In  the  majority  of  the  charters  the  appoint- 
ment of  many  of  the  municipal  officers  was  put  into  the  hands 
[Removals]  of  the  mayor.  In  some  cities  the  mayor  was  given  the  power 
to  remove  on  definite  charges  the  officers  whom  he  appointed, 
or,  as  in  New  York,  to  do  this  with  the  approval  of  the  gover- 
nor. This  appointing  power,  however,  was  not  generally  an 
absolute  one.  After  the  analogy  of  the  Federal  Constitution, 
the  city  charters  usually  allowed  the  mayor  to  nominate  and 
the  city  council  to  confirm  his  nominations.  This  opened  the 
door  to  trading  and  logrolling,  but  on  the  whole  it  was  an 
advance  over  the  system  either  of  popular  election  or  of  state- 
appointed  officers.  In  the  last  decade  of  this  period  an  increas- 
ing number  of  cities  vested  the  absolute  appointing  power  in 
the  mayor.  Practically  all  the  city  charters  during  these  years 
give  the  mayor  the  power  of  veto  of  measures  and,  in  some 
cases,  of  separate  items  in  finance  bills. 

Municipal  functions  were  rapidly  extended  during  this  period. 
The  older  cities  required  a  higher  standard  of  efficiency  and 
the  smaller  cities  demanded  an  expansion  of  their  functions, 
especially  with  regard  to  the  maintenance  of  streets,  protec- 
tion against  fire,  the  reorganization  of  the  police  forces,  and 
public  education. 

1  California,  Illinois,  Louisiana,  Missouri,  New  Jersey,  Pennsylvania, 
Texas,  and  West  Virginia. 


[Veto] 


Municipal 
functions 


MUNICIPAL  DEVELOPMENT  371 

With  the  extension  of  these  municipal  functions  and  their  Finance 
appHcation  to  large  bodies  of  population  concentrated  in  a 
small  area,  the  expense  of  municipal  administration  rapidly 
increased.  By  1900  the  annual  expenditure  of  New  York  City 
was  more  than  $100,000,000,  and  the  expense  per  capita  was 
swiftly  rising  with  the  growth  of  the  city.  The  New  York 
City  charter  of  1873  introduced  a  novelty  in  dealing  with 
this  problem.  The  council  had  proved  extravagant  and  in- 
efficient ;  a  new  board  was  created  known  as  the  board  of 
estimate  and  apportionment,  which  consisted  of  the  mayor, 
comptroller,  president  of  the  board  of  aldermen,  and  president 
of  the  department  of  taxes  and  assessors.  This  board  was  given 
the  duty  of  preparing  the  budget  and  became  the  central 
authority  in  municipal  finance,  thus  exerting  an  effective  con- 
trol over  the  entire  system  of  municipal  government.  During 
this  period  other  cities  adopted  boards  of  control,  budget 
boards,  or  some  institution  to  perform  similar  functions. 

The  evils  of  the  spoils  system  had  been  clearly  seen  in  the  The  spoils 
previous  period,  and  in  these  later  years  attempts  were  made  ^'^^^^'^ 
to  remedy  them.  State  after  state  passed  civil-service  laws  and 
established  commissions  for  the  supervision  of  municipal  ap- 
pointments. The  municipal  service  was  classified  and  appoint- 
ment was  made  only  as  a  result  of  competitive  examination, 
while  officers  could  be  removed  only  for  cause  and  in  many 
cases  only  after  a  hearing.  Although  the  civil-service  movement 
had  its  origin  during  this  period,  it  was  not  extended  to  all  the 
municipal  officers  nor  was  it  found  in  the  majority  of  the  states. 

Municipal  Development  from  1900  to  1920 

The  decades  from  1900  to  1920  are  noteworthy  because  of  character- 
the  radical  changes  in  the  framework  of  city  government  and 
because  of  an  awakened  and  lively  interest  in  municipal  affairs. 
This  interest,  it  is  true,  was  manifested  during  the  last  decade 
of  the  nineteenth  century,  but  it  has  become  increasingly 
effective  during  the  last  twenty  years. 

From  1900  to  1920  the  urban  population  has  increased  from  Growth  of 
30,000,000  to  54,000,000 — a  greater  increase  than  in  any  of 
the  periods  which  have  been  examined.    Moreover,  in   1920, 


372    DEVELOPMENT  OF  MUNICIPAL  GOVERNMENT 

as  has  been  seen,  more  than  half  of  the  entire  population  of  the 
United  States  lived  in  cities.    Municipal  administration  is  thus 
a  problem  of  prime  importance  to  the  majority  of  the  people 
of  the  country. 
Municipal         The  municipal  reforms  of  the  previous  periods  were  aimed 
at  special   abuses   or  tendencies,  rather  than  at  any  radical 
change  in  the  form  of  government.    These  reforms  have  stead- 
[Home  rule]  ily  continued.     The  movement   for  home   rule — that  is,   the 
independence  of   the  city  from  state  control — has  gathered 
an  increasing  momentum.    Some  states  give  to  the  cities  the 
absolute  power  to  frame  their  own  charters ;  others,  like  New 
York  and   Massachusetts,  provide  certain  types   of  charters 
which  cities  may  adopt.    Almost  everywhere  there  is  a  tend- 
ency to  restrict  special  legislation  and  state  interference  in 
municipal  government.    Nevertheless,  since  the  state  is  coming 
to  realize  that  its  welfare  is  dependent  upon  that  of  the  cities, 
there  has  been  an  extension  not  of  state  interference  with 
municipal  government  but  of  the  functions  of  state  administra- 
tion.   With  this  consideration  in  mind,  the  movement  for  home 
rule  is  not  so  important  as  is  sometimes  supposed. 
Reorganiza-      In  1901  the  Commission  system  of  government  was  estab- 
government  lished   for   Galveston,  Texas,  thus   introducing  a  novelty  in 
municipal  framework.    The  threatened  bankruptcy  of  the  city 
led  to  a  reorganization  of  the  government  not  on  political  but 
on  business  lines.    It  meant  the  breaking  down  of  the  tradi- 
tional separation  of  the  powers  of  legislation  and  administra- 
[Govern-       tion.  The  movement  spread  rapidly,  particularly  in  the  Middle 
Mmmission]  West,  until  today  there  are  approximately  three  hundred  and 
fifty  commission-governed  cities.    The  weakness  of  commission 
government  was  soon  made  manifest,  and  about  ten  years  later 
the  city-manager  type  was  introduced,  thereby  concentrating 
in  one  hand  the  administrative   functions   of  the  city.    This 
movement,  as  well,  has  made  rapid  headway,  until  there  are 
[The  city      about   two  hundred   cities  having   city   managers.     In   those 
cities  which  retained  the  traditional  forms  of  government  in- 
••^suong       creasing  power  has  been  given  to  the  mayor.    More  and  more 
mayor"]      frequently  it  is  the  case  that  his  powers  of  appointment  and 
removal  arc  extended  and  made  independent  of  the  council; 


MUNICIPAL    DEVELOPMENT  373 

especially  in  finance  the  mayor's  power  has  grown,  and  in  some 
states  to  the  extent  that  the  city  council  may  not  increase  any 
item  in  the  mayor's  budget. 

As  might  be  expected,  municipal  functions  have  developed  Municipal 
most  rapidly  during  this  period.  The  extraordinary  growth  of 
the  cities  has  necessitated  the  building  of  vast  waterworks  and 
sewage-disposal  systems,  while  in  the  largest  cities  the  trans- 
portation question  is  one  of  great  importance.  The  old  prob- 
lems of  street  pavement,  lighting,  and  protection  against  fire 
have  been  met  with  always  greater  efficiency.  A  high  standard 
is  demanded  and  a  far  higher  standard  attained  than  in  any 
previous  period.  Newer  functions  are  constantly  being  under- 
taken by  the  cities.  As  far  back  as  1850  the  development  of 
parks  was  considered  a  legitimate  city  function.  Today  this 
has  expanded  to  an  extraordinary  degree,  and  playgrounds, 
recreation  centers,  and  municipal  amusements  are  frequently 
provided.  Increasing  attention  is  given  to  the  development  of 
the  city  streets,  and  a  whole  new  movement — that  of  city 
planning — is  attempting  to  add  to  the  efficiency,  convenience, 
and  safety  of  city  life.  The  school  systems  are  undertaking 
new  functions,  not  simply  in  the  development  of  night  schools 
and  kindergartens  but  in  the  maintenance  of  specialized  schools, 
which  give  training  for  specific  objects.  More  and  more  care 
is  taken  of  the  poor,  the  sick,  the  unfortunate,  and  the  delin- 
quent, until  the  appropriations  for  these  objects  rank  second 
in  the  expenses  of  all  the  cities  of  the  United  States.  As  a 
result  the  appropriations  for  schools  rank  first  among  the  ex- 
penses of  the  cities  of  the  United  States,  and  the  combined 
amounts  appropriated  for  sanitation,  recreation,  health  con- 
servation, and  charities  are  almost  double  the  sum  spent  upon 
any  other  service  except  schools.^ 

1  Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statistics 
of  Cities  (1919),  p.  78. 


CHAPTER  XXI 
THE  RELATION  OF  THE  CITY  TO  THE  STATE^ 

The  city  a  The  distinguishing  mark  of  i\merican  cities  is  the  fact  that 
corporation  fj^gy  ^j-g  municipal  corporations.  A  municipal  corporation  has 
been  defined  as  ^'the  body  politic  and  corporate  constituted  by 
the  incorporation  of  the  inhabitants  of  a  city  or  town  for 
the  purposes  of  local  government  thereof.  .  .  .  [It  is]  estab- 
lished by  law  partly  as  an  agency  of  the  State  to  assist  in  the 
civil  government  of  the  country,  but  chiefly  to  regulate  and 
administer  the  local  or  internal  affairs  of  the  city,  town,  or 
district  which  is  incorporated."-  The  city  is  a  public  cor- 
poration (that  is,  one  established  for  public  purposes),  and  as 
such  it  is  called  into  being  at  the  pleasure  of  the  state,  inde- 
pendently of  the  will  of  the  people  of  the  locality  affected.  It 
is  true  that  in  many  instances  the  inhabitants  of  the  district 
are  consulted,  but  this  is  not  legally  necessary.-'  A  municipal 
corporation,  like  all  other  corporations,  is  the  creation  of  the 
legislature  of  the  state.  It  has  been  shown  that  the  boroughs 
of  colonial  times  received  their  charters  from  the  governor,  and 
as  such  the  charters  were  beyond  the  interference  or  control  of 
the  colonial  legislatures.    But  it  has  also  been  shown  that  the 

^The  relation  of  city  and  state  is  well  treated  in  brief  form  in 
W.  B.  Munro's  "Government  of  American  Cities,"  chap,  iii,  and  in 
Goodnow  and  Bates's  "Municipal  Government,"  chaps,  vi,  vii.  One  of 
the  most  comprehensive  sources  is  found  in  Howard  L.  McBains  "The 
Law  and  the  Practice  of  Municipal  Home  Rule."  The  fifth  edition  of 
J.  F.  Dillon's  "Commentaries  on  the  Law  of  Municipal  Corporations" 
(S  vols.)  considers  this  subject  exhaustively  with  references  to  the  deci- 
sions of  the  courts.  A  brief  account  of  municipal  home  rule  is  found 
in  Bulletin  No.  ii  of  tlie  Bulletins  for  the  Massachusetts  Constitutional 
Convention,  Vol.  1,  |).  415.  Mention  should  also  be  made  of  F.  J.  Good- 
now's  "Municipal  Home  Rule."  Other  references  may  be  found  in 
W.  B.  Munro's  "  Bibliography  of  Municipal  Government." 

-J.  F.  Dillon,  (!()nimin(arics  on  tlic  Law  of  Municipal  Corjiorations, 
Vol.  I,  pp.  58-59.  'Ibid.  p.  142. 

374 


RELATION  OF  THE  CITY  TO  THE  STATE     375 

state  legislatures,  since  their  establishment,  have  exercised  com- 
plete and  undisputed  control  over  the  charters  of  all  cities, 
whether  these  had  been  granted  by  a  colonial  governor  or  by 
the  legislature  itself. 

The  legal  position  of  the  city  in  the  state  thus  depends  Legal 
primarily  on  the  fact  that  it  is  a  corporation.    As  such,  it  is  the^city  tn 
the  product  of  the  state  legislature  and  is  entirely  subordinate  ^^  ^^*® 
to  it  in  all  ways  not  forbidden  by  either  the  Federal  Constitu- 
tion or  the  state  constitution.     The  position  of  the  city  is, 
moreover,  affected  by  the  fact  that  it  is  a  public  corporation, 
organized  for  the  purpose  of  performing  functions  which  are 
of  interest  not  only  to  the  city  itself  but  to  the  state  at  large. 
The  state,  therefore,  is  compelled  to  regard  the  municipal  cor- 
poration in  a  very  different  light  from  the  private  corporations 
created  by  the  legislature.    Thus,  state  control  has  an  entirely 
legitimate  sphere  in  municipal  activities. 

The  basis  of  municipal  government  is  to  be  found  in  the  city  The  city 
charter.  These  charters  generally  contain  four  important  ele- 
ments: ^  (i)The  first  clause  creates  a  corporation  by  declaring 
the  city  to  be  a  ''body  corporate  and  politic"  with  a  definite 
name  by  which  it  ''shall  have  perpetual  succession,  may  use 
a  common  seal,  sue  and  be  sued,  purchase,  hold,  and  sell 
property."  (2)  A  definition  of  the  territorial  boundaries  of 
the  city.  (3)  Provisions  relating  to  the  governing  body  of 
the  corporation.  These  provisions  include  not  merely  a  de- 
scription and  enumeration  of  the  powers  of  the  mayor  and 
common  council  but  also  the  qualifications  for  the  voters  of 
the  city.  In  some  charters  the  provisions  for  holding  elections 
are  prescribed.-  (4)  Perhaps  the  most  important  feature  of 
the  charter  is  the  minute  and  detailed  enumeration  of  the 
powers  of  the  city  council.  This  section  contains  the  grants 
of  power  and  the  limitations  which  condition  practically  all 
the  municipal  activities.  The  most  important  of  these  grants 
is  the  one  which  allows  the  city  to  create  debts,  usually,  how- 
ever, subject  to  very  definite  limitations.    As  will  be  seen,  the 

^J.  F.  Dillon,  Commentaries  on  the  Law  of  Municipal  Corporations, 
Vol.  I,  pp.  Q4-9S. 

2  These  features  will  be  discussed  at  length  in  the  succeeding  chapters. 


the  city 


376      STATE  AND  MUNICIPAL  GOVERNMENT 

city  charter  gives  to  the  city  all  the  powers  it  has,  and  the 
courts  quite  uniformly  have  construed  city  charters  very 
strictly.  Therefore  it  is  of  vital  importance  to  the  city  that 
a  proper  and  adequate  grant  of  power  be  contained  in  the 
charter.  It  is  true  that  cities  may  secure  additional  powers 
by  general  statutes  applicable  to  all  cities,  or  from  specific 
powers  conferred  upon  them  by  special  legislation.  But  such 
legislative  interference,  while  necessary  and  salutary  in  some 
instances,  has  not  always  brought  about  good  results.  With- 
out doubt  the  present  tendency  is  toward  endowing  a  city  with 
adequate  power  and  freeing  it  from  the  capricious  and  some- 
times partisan  interference  of  the  state  legislature. 
Powers  of  The  city  charter  generally  grants  five  classes  of  powers  to 
the  city :  ( i )  the  powers  incident  to  all  corporations ;  (2 )  power 
to  levy  taxes;  (3)  power  to  appropriate  and  spend  money; 
(4)  power  to  perform  certain  public  services;  and  (5)  power 
to  enact  and  enforce  local  police  ordinances.^  Since  the  city 
has  no  inherent  authority  the  source  for  the  exercise  of  all  these 
functions  must  be  found  in  some  definite  grant,  either  in  the 
charter  or  in  statutes.  The  burden  is  placed  upon  the  city  of 
proving  that  it  actually  possesses  the  powers  it  wishes  to  exer- 
cise. Where  the  power  claimed  is  an  ordinary  one  the  courts 
are  fairly  liberal  in  construing  the  clauses  of  the  charter  or 
statutes,  but  they  are  very  strict  in  the  interpretation  of  grants 
of  power  which  are  out  of  the  usual  or  which  may  touch  the 
right  to  liberty  or  property  of  the  citizens.-'  Thus,  although  the 
courts  do  not  construe  with  too  great  narrowness  the  powers 
granted  to  the  city  for  establishing  streets,  parks,  or  schools,  they 
are  extremely  strict — frequently  to  the  point  of  denial — with 
regard  to  the  privilege  of  engaging  in  some  of  the  newer  munic- 
ipal activities.  For  example,  it  required  a  special  act  of  the  legis- 
lature of  Massachusetts  amending  the  charter  of  Taunton  to 
allow  that  city  to  establish  a  dental  clinic  for  school  children.'' 

'  This  classification  is  follow  ed  by  Goodnow  and  Hates,  Municipal 
Government,  p.  93.  A  more  extended  treatment  is  found  in  J.  F.  Dillon, 
Commentaries  on  the  Law  of  Municipal  Corporations,  Vol.  I,  pp.  439-580. 

^See  J.  F.  Dillon,  Commentaries  on  the  Law  of  Municipal  Corpora- 
tions, Vol.  I,  pp.  452-454,  especially  footnote  2,  pp.  453-454. 

•'Goodnow  and  Bates,  Municipal  Government,  p.  95. 


RELATION  OF  THE  CITY  TO  THE  STATE     377 

A  more  usual  application  of  this  tendency  is  found  in  the 
refusal  to  cities  of  the  right  to  engage  in  any  sort  of  public- 
utility  enterprise  not  directly  connected  with  the  police  power 
of  the  municipality.^ 

The  powers  granted  by  the  charter  are  usually  exercised  by  How  the 

citv  GXGr— 

city  ordinances ;  that  is,  by  an  act  of  the  legislative  body  of  cises  these 
the  city.  The  charter  generally  prescribes  the  procedure  for  p°^"s 
passing  such  an  act,  and  in  most  cases  the  consent  of  the  city 
executive  is  necessary.  To  be  valid  a  city  ordinance  must  be 
(i)  within  the  powers  granted  by  the  charter  and  (2)  adopted 
according  to  the  procedure  prescribed  by  the  charter.  The 
courts,  moreover,  have  laid  additional  limitations  upon  this 
ordinance  power,  (i)  Ordinances  must  be  reasonable.  What 
constitutes  a  reasonable  or  unreasonable  ordinance  is  generally 
determined  by  the  court  in  a  consideration  of  each  special  case, 
but  judicial  decisions  now  furnish  a  great  body  of  precedents.^ 
(2)  They  must  not  make  unjust  discriminations.  (3)  They 
must  not  unreasonably  restrain  trade.  This  does  not  mean  that 
trade  or  business  may  not  be  subject  to  regulation  and  limita- 
tions, for  all  trades  are  liable  to  some  restrictions.  These 
regulations,  however,  must  be  for  an  obvious  and  real  public 
purpose  and  must  not,  under  guise  of  the  exercise  of  the  police 
power,  attempt  certain  limitations  on  business. 

The  liability  of  cities  is  determined  by  the  twofold  position  Liabilities 

,  .  ,      ,         .  .  _     .  ,  , .  ,.  J   .      of  cities 

which  the  city  occupies.  It  is  a  public  corporation  engaged  in 
performing  public  functions,  and  it  is  also  engaged  in  certain 
business  or  commercial  operations  which  are  unconnected  with 
the  functions  of  government.  The  city  thus  occupies  a  posi- 
tion between  the  state,  which  may  not  be  held  responsible  for 
its  action,  and  a  private  corporation,  which  is  responsible  for 
all  its  acts.^ 

A  city  is  responsible  for  all  the  contracts  which  it  makes.  Liability 

,  .11-  for  contracts 

whether  these  are  to  carry  out  the  governmental  business 
or  in  furtherance  of  some  private  or  commercial  or  business 
enterprise  which  the  city  has  undertaken. 

iSee  W.  B.  Munro,  The  Government  of  American  Cities,  p.  81. 
2  Ibid.  pp.  86-87,  with  references  to  McQuilhn  and  to  Dillon. 
^Goodnow  and  Bates,  Municipal  Government,  p.  95. 


378      STATE  AND  MUNICIPAL  GOVERNMENT 

Liability  for      A  distinction  is  made  in  holding  the  city  liable  for  torts: 
^°^^  when  acting  in  its  public  or  governmental  capacity  the  city 

is  not  liable  for  its  torts,  but  when  acting  in  its  private  capacity 
it  is  liable.  ^Moreover,  with  regard  to  torts  committed  by  its 
agents,  a  similar  distinction  is  made.  The  city  is  not  liable 
for  the  acts  of  those  agents  or  officers  engaged  in  purely 
governmental  service,  but  in  the  case  of  the  officials  and 
employees  who  are  engaged  in  the  commercial  or  business 
enterprises  which  the  city  undertakes,  the  city  is  liable  for 
damages  on  account  of  their  torts,  whether  these  arise  from 
negligence  or  from  inefficiency.  Thus  a  city  may  not  be  held 
liable  for  the  action  of  the  fire  department,  but  is  held  liable 
for  all  torts  and  damages  a  person  may  suffer  from  the  adminis- 
tration of  the  water  department.  The  general  rule  is  that 
where  the  city  performs  some  special  function  for  which  it 
receives  definite  compensation  it  ceases  to  act  in  its  general 
or  governmental  capacity  and  is  subject  to  the  same  liabilities 
as  a  private  corporation.^ 
Attitude  of  Such  being  the  position  of  the  city  in  the  state,  and  such 
ture^tfwaVd  ^^^  powers  and  responsibilities,  it  is  evident  that  it  occupies 
the  cities  ^  purely  subordinate  position  and  that  the  whole  story  of 
municipal  development  depends  upon  the  attitude  which  the 
people  of  the  state  and  the  legislature  manifest  toward  it. 
This  has  varied  from  time  to  time ;  but  inasmuch  as  the 
theory  of  strict  construction  of  charters  has  always  been  ap- 
plied, and  since  the  growth  of  the  cities  has  necessitated  new 
or  additional  powers,  the  cities  have  constantly  been  forced  to 
ask  for  special  legislation  and  legislative  consideration.  More- 
over, as  has  been  shown,  in  certain  periods  of  municipal  develop- 
ment the  legislatures  have  for  partisan  purposes  frequently 
interfered  in  municipal  affairs. 
Special  Cities  have  always  been  subjects  of  special  legislation.    By 

legislation     ^g^^  ^^^  mischievous  results  were  beginning  to  be  obvious,  and 
efforts  were  made  to  check  or  control  it.    These  measures  were 

1  For  a  more  extended  treatment  of  this  subject  see  W.  B.  Munro, 
The  Government  of  American  Cities,  pp.  go-ioi.  The  whole  question  of 
liabilities  is  exhaustively  discussed  in  J.  F.  Dillon's  "Commentaries  on 
the  Law  of  Municipal  Corporations,"  Vol.  IV,  pp.  2807-3064. 


RELATION  OF  THE  CITY  TO  THE  STATE     379 

not  immediately  successful ;  in  fact,  the  volume  of  special 
legislation  increased  in  the  next  decades.  For  example,  in  1870 
the  New  York  assembly  passed  808  acts,  of  which  212,  amount- 
ing to  three  fourths  of  the  bulk  of  the  statutes  of  the  year, 
related  to  cities  and  villages.^  Between  the  years  1884  and 
1889  the  legislature  passed  1284  acts,  390  of  which  affected 
New  York  City.-  In  1890,  67  laws  were  passed  by  the  legisla- 
ture of  Maryland  affecting  Baltimore  alone. ^  In  Massachu- 
setts, between  1885  and  1908,  there  were  four  hundred  special 
laws  passed  relating  to  Boston;  and  in  1916 — in  spite  of  the 
fact  that  Massachusetts  had  adopted  the  optional  charter  law 
— over  three  hundred  requests  for  special  legislation  were  re- 
ferred to  various  committees,  and  171  were  enacted  into  laws.* 
Such  a  volume  of  special  legislation  is  hurtful  and  inefficient. 
Its  necessity  may  possibly  arise  because  of  an  ill-drafted 
charter  or  an  improper  classification  of  the  cities  of  the  state 
by  general  law.  But  errors  in  charter  drafting  or  in  classi- 
fication of  cities  are  extravagantly  rectified  if  that  process  com- 
pels the  legislature  to  remedy  them  by  special  legislation, 
which  is  wasteful  of  the  time  and  energy  of  the  legislature. 
That  body  at  best  is  very  busy,  and  in  many  states  the  length 
of  its  session  is  strictly  limited.  To  insist  that  a  large  propor- 
tion of  its  efforts  should  be  devoted  to  considering  municipal 
problems  in  which,  after  all,  only  a  small  portion  of  the 
legislators  are  interested,  is  to  place  too  great  a  burden  on 
an  already  overworked  body.  In  their  anxiety  to  secure  the 
desired  legislation  the  cities  have,  moreover,  been  known  to 
maintain  expensive  lobbies  for  the  purpose  of  influencing  the 
legislators.  Such  special  legislation  is  also  hurtful  in  many 
instances  to  the  particular  city.  It  is  frequently  passed  not 
for  the  purpose  of  benefiting  the  city  concerned  but  to  further 
the  fortunes  of  a  political  party  and  a  certain  economic  group. 
Instances  are  not  wanting  where  some  cities  have  been  de- 
prived of  valuable  privileges  by  the  legislatures  when  their  own 

^Goodnow  and  Bates,  Municipal  Government,  p.  100. 

^F.  J.  Goodnow,  Municipal  Home  Rule,  p.  23. 

"Goodnow  and  Bates,  Municipal  Government,  p.  100. 

•*W.  B.  Munro,  The  Government  of  American  Cities,  pp.  61-67. 


38o      STATE  AND  MUNICIPAL  GOVERNMENT 

governments  desired  to  retain  them.    Special  legislation  is  in- 
efficient.   The  majority  of  the  members  of  the  legislature  are 
not   vitall}'   interested   in   the   special   bills   reported   by    the 
committees.   The  various  committees  themselves,  as  has  been 
shown/  are  made  up  by  the  organization  in  the  legislature  and 
not  all  the  cities  by  any  means  are  represented  on  their  com- 
mittees.   In  some  states  it  has  become  the  habit  of  the  legisla- 
tive committees  to  consult  and  take  the  advice  of  the  members 
of  the  majority  party  who  happen  to  come  from  the  particular 
city  affected.    If  it  should  happen,  as  it  sometimes  does,  that 
certain  interests  dominate  the  political  fortunes  of  that  city 
and  the  members  of  the  legislature  from  it,  the  result  is  that 
the  legislative  action  is  controlled  by  these  interested  parties 
rather  than  by  the  best  interests  of  the  city.    At  best,  special 
legislation  is  likely  to  be  inefficient ;  at  its  worst,  it  may  be 
used  to  further  corruption  and  misgovernment. 
Limiutions       The  control  of  the  state  over  the  city  is  limited  in  two  ways : 
power  of  the  fi^st,  by  the  general  prohibitions  of  the  Federal  Constitution 
6Ute  over     ^yhich  prohibit  the  state  from  depriving  any  person  of  property 
or  liberty   without   due  process   of   law,   from  impairing   the 
obligation  of  contracts,  or  from  taking  private  property   for 
public  use  without  just  compensation.    Second  and  more  im- 
portant, however,  are  the  limitations  which  are  found  in  the 
constitutions  of  the  various  states.     These  limitations  have 
steadily  increased  in  number.    As  has  been  shown,  during  the 
first  fifty  years  of  municipal  growth  the  cities  were  left  entirely 
at  the  mercy  of  the  state  legislature.    By  1850,  however,  the 
evil  of  such  unregulated  power  was  evident,  and  certain  states 
began  to  insert  limitations  in  their  constitutions  in  order  to 
protect  the  cities  from  the  dominance  of  the  legislatures.  These 
restrictions  are  expressed  in  different  ways.    Some  of  them  deal 
with  the  methods  of  framing  or  amending  the  charter  and  pro- 
hibit the  passage  of  special  laws  for  individual  cities.-   Others 
are  designed   to  prevent  the   legislature  from  allowing  cities 
to  do  things  which  have  been  found  dangerous  and  hurtful ; 
for  example,  to  grant  perpetual   franchises  to  public-service 

^Sce  pases  210-213. 

2 At  least  thirty  states  have  adnptcfi  restrictions  of  this  sort. 


RELATION  OF  THE  CITY  TO  THE  STATE     381 

corporations  or  to  exceed  their  borrowing  power.  Another  class 
of  restrictions  is  aimed  at  insuring  the  consent  of  the  citizens  of  a 
municipality  to  any  proposed  change.  In  some  states  no  change 
can  be  made  in  the  charters  unless  ratified  by  a  referendum  of 
the  citizens.  Other  states,  however,  have  gone  further  and  have 
established  municipal  home  rule ;  that  is,  they  allow  the  cities 
to  frame  their  own  charters  without  legislative  interference. 

The  first  state  to  prohibit  special  legislation  was  Ohio.  The  Restrictions 
constitution  of  1851  decreed  that  the  state  legislature  could  Jftion^'of 
pass  no  special  laws  for  the  individual  cities,  but  that  all  cities  i^gj^iatioii 
should  be  organized  according  to  a  general  law  which  should 
have  application  throughout  the  state.  In  1852  the  legislature 
passed  such  a  general  law,  dividing  the  cities  of  the  state  into 
two  classes.  The  process  of  classification,  however,  continued 
until  at  one  time  there  were  eleven  classes  of  cities,  eight  of 
which  contained  but  a  single  city.  Legislation,  therefore,  for 
any  one  of  these  eight  classes  was  equivalent  to  special  legisla- 
tion for  an  individual  city.  In  1902  the  supreme  court  of  Ohio 
overruled  its  previous  decisions  by  declaring  "that  the  present 
classification  cannot  be  regarded  as  based  upon  differences  in 
population,  or  upon  any  other  real  or  supposed  differences  in 
local  requirements.  Its  real  basis  is  found  in  the  differing 
views  or  interests  of  those  who  promote  legislation  for  the 
different  municipalities  of  the  state."  ^  This  forced  the  legisla- 
ture to  adopt  a  general  code  for  all  cities  having  a  population 
of  more  than  five  thousand.  The  result  was  almost  as  unfortu- 
nate as  the  minute  classification  which  had  previously  existed, 
in  that  the  largest  cities  in  the  state  were  given  no  greater  or 
other  powers  than  the  small  cities  and  were  thus  unable  to  deal 
with  the  special  problems  which  confronted  them.  This  con- 
dition continued  until  191 2,  when  the  constitutional  provision 
of  1 85 1  was  replaced  by  one  allowing  the  cities  to  adopt  by  a 
referendum  any  charter  or  law  which  the  legislature  might  pass, 

^ State  V.  Jones,  66  Ohio  St.  453,  quoted  by  J.  A.  Fairlie,  Essays  in 
Municipal  Administration,  p.  100.  Chap,  v  deals  with  "The  Municipal 
Crisis  in  Ohio,"  leading  to  the  adoption  of  the  general  code.  See  also 
H.  L.  McBain,  The  Law  and  the  Practice  of  Municipal  Home  Rule, 
pp.  621-645. 


382      STATE  AND  MUNICIPAL  GOVERNMENT 

The  optional  Some  statcs  are  still  unwilling  to  grant  municipal  home  rule, 
system  but  recognize  the  evils  of  a  rigid  municipal  code.  Several  of 
these  states — for  example,  Massachusetts,  New  York,  North 
Carolina,  Ohio,  and  Virginia — have  enacted  what  may  be 
described  as  optional  charter  laws;  that  is,  by  general  statute 
the  legislature  frames  several  different  types  of  charters  which 
any  city  within  the  state  may  adopt  by  a  referendum  vote.^ 
The  Massachusetts  system  offers  four  types,  including  the 
commission-government  and  city-manager  plans.  Six  different 
styles  are  presented  in  the  New  York  law,  which  any  city 
except  New  York,  Buffalo,  or  Rochester  may  choose.  This 
plan  has  certain  advantages  in  theory.  In  all  probability  it 
presents  plans  which  have  been  carefully  considered,  and  it 
provides  for  a  certain  degree  of  uniformity  while  allowing  for 
the  variations  which  different  cities  may  require.  It  is  de- 
signed to  save  the  city  the  inconvenience  and  expenditure  of 
time  and  energy  involved  in  framing  its  own  special  charter, 
and  it  frees  the  legislature  from  the  pressure  which  cities 
always  exert  for  the  adoption  of  their  particularly  designed 
charters.  Moreover,  it  gives  the  cities  home  rule  within  cer- 
tain limits.  Unfortunately,  however,  not  many  cities  have 
taken  advantage  of  this  plan,  and  in  Massachusetts  at  least 
the  practice  still  prevails  for  cities  to  frame  their  own  charters 
and  attempt  to  force  adoption  by  the  legislature. 
Regulated  Some  States  have  recognized  the  impossibility  of  prohibiting 
legislation  ^^^  special  legislation  for  cities  and  have  therefore  tried  to 
regulate  it.  This  is  sometimes  done,  as  formerly  in  Ohio,  by  a 
classification  of  the  cities  according  to  population.  In  other 
states  provisions  are  inserted  which  require  the  assent  of  a 
municipal  officer  or  of  the  citizens  of  the  municipality  before 
such  special  legislation  is  put  into  effect.  The  method  adopted 
in  New  York  provides  for  both  the  classification  of  cities  and 
the  assent  of  the  mayors  of  the  cities  concerned.  Legislation 
may  be  adopted  for  any  one  of  the  three  classes  into  which  the 
cities  of  the  state  are  divided  without  consulting  the  municipal 
authorities.  Legislation  for  any  single  city,  however,  must  be 
submitted  to  the  mayor  of  that  city.  If  it  receives  approval 
iSee  W.  B.  Munro,  The  Government  of  American  Cities,  pp.  57-58. 


RELATION  OF  THE  CITY  TO  THE  STATE     383 

the  bill  goes  to  the  governor  for  his  assent,  but  if  the  bill  is 
not  approved  it  must  be  passed  a  second  time  by  the  state 
legislature.  Some  cities  have  taken  advantage  of  the  provision 
which  allows  the  mayor  to  retain  the  act  for  fifteen  days,  and 
acts  passed  at  the  end  of  the  legislative  session  have  been  kept 
by  the  mayor  until  the  legislature  has  adjourned  and  then 
returned  with  his  disapproval,  thus  preventing  the  possibility 
of  such  legislation  during  that  session.  A  better  system  was 
adopted  by  Illinois  in  1904  and  by  Ohio  in  191 2,  which 
referred  all  charter  amendments  and  special  legislation  to  a 
popular  referendum  of  the  citizens  of  the  municipalities  in 
those  states.  This  gives  the  citizens  an  emphatic  veto  upon 
all  state  legislation  concerning  their  municipality,  although  it 
does  not  guarantee  the  adoption  of  all  measures  which  they 
might  desire.  It  has  been  used  in  the  case  of  Chicago  with 
great  effect  in  order  to  prevent  the  legislature  from  imposing 
measures  which  were  disliked  by  the  people.  The  disadvan- 
tage of  this  system  lies  in  the  inherent  limitations  connected 
with  the  use  of  the  referendum,  which  is  hardly  adapted  to 
the  decision  of  complicated  questions  by  popular  vote.  Yet, 
as  has  been  shown,  the  complicated  questions  of  municipal 
government  were  not  always  accustomed  to  receive  careful  or 
unbiased  consideration  in  the  legislature. 

The  most  far-reaching  attempt  to  free  cities  from  legislative  Municipal 
interference  is  by  the  establishment  of  municipal  home  rule.^ 
This  phrase — municipal  home  rule — is  given  different  mean- 
ings in  different  states  and  at  different  times.    In  some  it  may 

iThe  most  comprehensive  treatment  of  this  subject  is  found  in 
H.  L.  McBain's  "The  Law  and  the  Practice  of  Municipal  Home  Rule." 
Bulletin  No.  11,  of  the  Bulletins  for  the  Massachusetts  Constitutional 
Convention,  Vol.  I,  p.  415,  gives  a  brief  treatment  of  this  subject. 
J.  F.  Dillon,  Commentaries  on  the  Law  of  Municipal  Corporations, 
Vol.  I,  pp.  154-175,  discusses  the  home-rule  provisions  of  certain  states 
with  illustrative  cases.  F.  J.  Goodnow,  Municipal  Home  Rule,  presents 
the  earl}'  views.  Goodnow  and  Bates,  Municipal  Government,  chaps,  vi, 
vii,  particularly  pp.  103-113,  121-131,  and  138-148,  give  an  excellent  dis- 
cussion of  the  system  of  home  rule,  the  limitations  thereon,  and  the  rela- 
tive effects  of  legislative  and  administrative  control  of  municipal  functions. 
W.  B.  Munro,  The  Government  of  American  Cities,  pp.  61-79,  gives  an 
excellent  brief  discussion. 


384      STATE  AND  MUNICIPAL  GOVERNMENT 

mean  the  mere  prohibition  against  special  legislation,  and  in 
others  the  adoption  of  the  optional  charter  system.  Again,  it 
may  mean  the  approval  of  the  city  for  any  legislation  passed 
by  the  state.  In  its  wider  and  more  general  sense  municipal 
home  rule  signifies  the  power  of  the  city  to  determine  its  own 
form  of  government,  choose  its  own  officers,  and  regulate  its 
own  activities.  Thus,  in  its  widest  sense,  municipal  home  rule 
may  mean  local  self-government.  The  weight  of  the  judicial 
opinions  is  that  no  city  is  endowed  with  all  the  functions  of 
such  self-government,^  but  that,  as  the  Supreme  Court  has 
declared,  the  cities  are  mere  departments  of  the  state.-  In  its 
more  usual  sense  municipal  home  rule  includes  the  power  of 
the  city  to  frame  its  own  charter,  either  with  or  without  the 
assent  of  some  state  authority,  and  to  conduct  its  government 
according  to  the  charter  it  has  framed. 
Extent  of  Up  to  iQiQ  twelvc  States  had  adopted  some  system  allowing 

municipal  .....  .  ,     .  ,  o     r^, 

home  rule  municipahties  to  frame  their  own  charters.^  The  earliest  state 
to  adopt  this  plan  was  Missouri,  which  provided  in  1875  that 
any  city  council  might  call  for  the  election  of  a  miniature  con- 
vention in  order  to  frame  the  charter ;  if  approved  by  four 
sevenths  of  those  voting  at  a  general  or  special  election,  this 
charter  went  into  effect  without  the  necessity  of  obtaining  the 
assent  of  the  state  authorities.  California  adopted  a  similar 
scheme  in  1879,  Washington  in  1889,  and  Minnesota  in  1896, 

ij.  F.  Dillon,  Commentaries  on  the  Law  of  Municipal  Corporations, 
Vol.  I,  pp.  154-156. 

-Barnes  v.  District  of  Columbia,  91  U.S.  540.  For  the  decisions  of 
state  courts  denying  the  right  of  local  self-Rovcrnmcnt  sec  J.  F.  Dillon, 
Commentaries  on  the  Law  of  Municipal  Corporations,  Vol.  I,  pp.  164-175. 

^Missouri  (1875);  California  (1879);  Washington  (1889);  Minne- 
sota (i8q6)  ;  Colorado  (1902);  Oregon  (1006);  Oklahoma  (1908); 
Michigan  (1908);  Arizona,  Ohio,  Nebraska,  and  Texas  (1912).  In  addi- 
tion, Wisconsin  in  1919  passed  a  constitutional  amendment  through  its 
first  stage;  Utah  framed  an  amendment  which  is  to  be  submitted  to  the 
people  at  the  ne.xt  election ;  and  Pennsylvania  passed  two  amendments 
through  one  session  of  the  legislature  which  will  have  to  be  submitted  a 
second  time.  Sec  H.  L.  McHain,  The  Law  and  the  Practice  of  Municipal 
Home  Rule,  pp.  114-117,  for  a  table  showing  (he  machinery  of  home 
rule.  See  also  Bulletins  for  the  Massachusetts  Constitutional  Convention, 
Vol.  I,  pp.  447-449,  for  a  table  showing  the  states  following  this  plan  and 
the  method  of  initiation,  ratification,  and  amendment. 


RELATION  OF  THE  CITY  TO  THE  STATE     385 

but  most  of  the  states  now  utilizing  this  plan  did  not  adopt 
it  until  the  twentieth  century.  Minnesota,  Michigan,  and 
Ohio  are  the  only  states  east  of  the  Mississippi  which  allow 
this  system. 

The  majority  of  states  permitting  home-rule  charter-making  Procedure 

.  .     .  1        1      i.    J   in  making 

provide  for  summonmg  a  charter  commission,  as  a  rule  elected  home-ruie 
by  the  citizens  voting  at  large. ^  In  Oregon  there  is  no  proce-  ^^"^"^ 
dure  prescribed  by  the  constitution,  but  the  provisions  of  the 
initiative  and  referendum  are  applicable.  The  work  of  the 
charter  commission,  which  in  most  states  is  called  a  board  of 
freeholders,  is  then  submitted  for  the  approval  of  the  voters 
at  either  a  general  or  a  special  election."  In  most  all  states  a 
majority  of  those  voting  on  the  question  is  required  for  the 
ratification  of  this  charter.  Missouri,  however,  stipulates  four 
sevenths  of  those  voting  at  the  election  except  in  the  case  of 
St.  Louis,  where  only  a  majority  is  required.  Minnesota  has 
a  similar  requirement.  In  eight  of  these  states  the  charter  is 
put  into  effect  without  the  approval  of  the  state  authorities; 
in  the  others  the  legislature  or  governor  must  act  before  the 
charter  is  finally  adopted.^  Amendments  to  such  charters  may 
be  proposed  either  by  the  council  or  by  petition  of  a  certain 
percentage  of  the  voters,  varying  from  5  per  cent  in  Colorado 
and  Nebraska  to  25  in  Arizona.  These  amendments  are  sub- 
ject to  popular  ratification,  and  where  the  state  authorities  are 
required  to  act  on  the  original  charter  similar  action  is  required 
for  the  amendments.^ 

Considering  home  rule  from  the  first  point  of  view — namely.  Limitations 
the  power  of  the  city  to  determine  its  own  frame  of  govern-  ruiecharter- 
ment — there  can  be  little  objection  to  any  one  of  the  methods  '"^'^'"s 

1  In  Minnesota  the  judge  of  the  district  court  may  appoint  the  com- 
mission and  must  appoint  it  on  petition  of   10  per  cent  of  the  voters. 

2  In  Oregon  the  council  may  approve  the  charter,  but  its  act  is  subject 
to  a  popular  referendum  if  demanded. 

3  In  California  it  must  be  approved  by  a  concurrent  resolution  of  the 
legislature;  in  Oklahoma  and  Arizona  by  the  governor  if  not  in  conflict 
with  the  state  constitution  and  laws;  in  Michigan  by  the  governor  be- 
fore it  is  submitted  to  the  voters,  but  his  veto  may  be  overridden  by  a 
two-thirds  vote  of  the  charter  commission. 

4 See  H.  L.  McBain,  The  Law  and  the  Practice  of  Municipal  Home 
Rule,  pp.  656-667,  for  a  discussion  of  the  working  of  this  machinery. 


386      STATE  AND  MUNICIPAL  GOVERNMENT 

described  here.  It  is  not  of  vital  importance  to  the  state 
whether  a  city  adopts  the  ordinary  type  of  government  (that 
is,  mayor  and  council),  the  commission,  or  the  city-manager 
plan.  The  interest  of  the  state  lies  rather  in  the  control 
of  both  the  municipal  functions  and  the  municipal  officers 
appointed  to  enforce  state  and  municipal  laws.  Municipal 
charter-making  in  the  sense  of  adopting  some  particular 
scheme  of  municipal  government  may  well  be  performed  by 
the  city  itself  without  much  state  supervision.  But,  as  has 
been  shown,  a  city  charter  deals  not  simply  with  the  frame- 
work of  the  government  but  with  the  electorate  and  its  func- 
tions and  with  the  powers  exercised  by  the  city  council ;  it  also 
determines  the  activities  in  which  the  city  may  engage.  The 
state  is  vitally  interested  in  these  functions  and  duties. 
Choice  of  Self-government  involves  the  right  to  choose  the  officers  who 

mcii^^  shall  administer  the  functions  of  government.  Municipal  home 
rule,  therefore,  would  vest  in  the  cities  the  choice  of  such 
officers.  Yet,  as  has  been  seen,^  the  failure  of  the  city  to 
appoint  proper  and  efficient  officials  has  led  the  states  again 
and  again,  sometimes  at  the  request  of  the  cities  themselves, 
to  take  over  the  appointment  of  certain  city  officials.  Par- 
ticularly was  this  true  with  regard  to  the  police  and  fire  com- 
missions and  in  some  instances  the  financial  officers.  The 
extension  of  this  movement  had  two  causes.  In  the  first  place, 
certain  cities  appealed  to  the  legislature  for  protection  against 
their  own  government ;  this  was  emphatically  true  in  machine- 
ridden  cities,  where  the  parties  or  certain  interests  were  exploit- 
ing the  city  for  their  selfish  purposes.  A  second  reason  is  found 
in  the  fact  that  many  municipal  officers  are  charged  with  the 
enforcement  of  state  laws;  for  example,  the  police,  and,  for- 
merly, those  officials  charged  with  the  enforcement  of  liquor 
regulations.  Such  officials  might  rightly  be  classified  as  state 
officers.  The  courts,  holding  the  traditional  narrow  view  with 
regard  to  the  powers  of  a  municipality,  have  tended  to  inter- 
pret away  constitutional  prohibitions  on  state  interference  by 
assuming  that  these  officers  were  state  rather  than  municipal 
officials.    Some  state  control  over  certain  officials  who  are  the 

'Sec  page's  307-309. 


RELATION  OF  THE  CITY  TO  THE  STATE     387 

agents  for  the  enforcement  of  state  laws  is  obviously  necessary. 
Consequently  the  city-made  charters  might  properly  be  re- 
stricted or  the  officials  chosen  under  them  subjected  to  some 
form  of  state  regulation  and  supervision.  What  this  should  be 
will  be  discussed  later. 

By  far  the  most  important  part  of  city  charters  consists  in  Municipal 
the  grants  of  power  which  determine  the  functions  of  the  city. 
In  these  the  state  is  vitally  interested.  Not  only  do  the  cities 
contain  the  larger  part  of  the  population  of  the  United  States, 
but  the  activities  of  this  population  may  affect  the  entire  state 
in  many  ways.  For  example,  the  question  of  the  water  supply 
of  a  great  city  is  one  which  affects  not  simply  the  city  itself 
but  the  surrounding  communities.  In  the  same  way,  the  dis- 
position of  the  sewage  of  a  large  city  is  of  vital  importance 
to  the  entire  state.  Particularly  is  this  true  when  several 
municipalities  are  in  close  proximity  to  each  other.  Thus,  for 
example,  Massachusetts  has  very  properly  and,  on  the  whole, 
successfully  dealt  with  the  water  supply  and  drainage  of  the 
so-called  metropolitan  district,  which  contains  not  only  Boston 
but  several  cities  of  the  second  class.  The  financial  condition 
of  the  cities  is  also  a  matter  for  state  concern.  Therefore  a 
very  definite  limit  should  be  placed  upon  the  functions  which  a 
city-made  charter  grants  to  the  council.  In  what  fields  these 
limitations  should  be  exerted  and  how  they  should  be  exercised 
will  be  discussed  later. 

The  city  as  a  political  unit  will  be  considered  in  the  next  Political 
chapter.    Here,  however,  it  is  necessary  to  note  the  integration  the  city  to 
of  politics  in  city  and  state  as  a  factor  in  determining  the  *^^s*^^^ 
question  of  home  rule.    Historically  the  national  parties  have 
dominated  both  the  states  and  the  municipalities.    The  doc- 
trine of  the  complete  subordination  of  the  city  to  the  state 
strengthened  this  tendency.    In  a  previous  chapter^  it  has  been 
noted  that  the  successful  party  in  state  politics  regarded  the 
patronage  of  the  city  as  its  legitimate  perquisite.    This  feeling 
grew  stronger,  if  anything,  in  the  decades  immediately  follow- 
ing the   Civil  War.    The   federal   system  of  government,   in 
which  the  powers  of   the  state  are  distributed  between  the 

iSee  page  366. 


388      STATE  AND  MUNICIPAL  GOVERNMENT 

national,  state,  and  local  units,  may  at  times  require  the  con- 
trol of  all  these  units  by  a  single  party  in  order  to  realize  the 
complete  policy  of  that  party .^  Thus,  party  names  and  organi- 
zations are  the  same  for  national,  state,  and  municipal  parties, 
and  the  organization  of  the  party  in  each  area  is  not  inde- 
pendent, but  integrated  with  the  organization  in  other  areas. 
With  the  constant  interference  of  the  state  legislature  in  munic- 
ipal affairs  this  subservience  of  municipal  to  state  parties  was 
perhaps  necessary.  To  many  observers  such  necessity  has  now 
disappeared,  and  efforts  are  made  to  divorce  municipal  from 
state  politics.  It  is  questionable  whether  this  is  possible  or 
even  desirable.  The  growth  of  cities  has  brought  more  than 
half  of  the  people  under  their  jurisdiction.  The  cities  them- 
selves are  constantly  reaching  out  in  every  part  of  the  state 
and  affecting  more  and  more  the  life  and  resources  of  the  rest 
of  the  state.  What  touches  the  cities  for  good  or  evil  reacts 
upon  the  entire  state.  With  the  extension  of  manhood  suffrage 
and  the  concentration  of  the  alien  element  within  the  city, 
it  may  be  questioned  whether  the  cities  should  be  allowed  to 
exercise  without  restriction  or  supervision  the  "right  of  self- 
government,"  which  some  of  them  claim  but  which  the  courts 
have  denied.  That  cities  should  be  freed  from  captious  and 
selfish  interference  in  their  affairs  by  the  legislature  is  obvious, 
but  that  cities  can  never  be  allowed  complete  and  entire 
municipal  home  rule  is  equally  clear.  Hence  the  question  to 
be  answered  is  to  what  extent  and  in  what  measure  this  state 
control  over  cities  may  best  be  exercised. 
Fields  in  At  the  risk  of  some  repetition  it  is  advisable  to  summarize 

control ^is^  ^^T  briefly  the  fields  in  which  state  control  of  municipal 
exercised-  ^^Jfctions  is  advisable  or  necessary.  The  city  from  one  point 
of  view  is  but  an  area  of  the  state  government.  Emphatically 
is  this  true  in  the  conduct  of  elections.  There  is  no  doubt  of 
this  when  one  remembers  that  in  some  states  the  urban  popu- 
lation is  so  much  greater  than  the  rural  and  that  the  policy 
(i  )Eiec-  of  the  state  is  determined  by  elections  in  the  cities.  If  the 
states  are  to  be  maintained  as  political  entities  it  is  necessary 

1  Everett   Kimball,  The  National   Government   of   the  United  States, 
pp.  138-139- 


tions 


RELATION  OF  THE  CITY  TO  THE  STATE     389 

for  them  to  be  able  to  enforce  their  laws  and  to  supervise 
elections  in  the  cities. 

The  power  to  levy  taxes  is  a  sovereign  power.  At  first  the  (2)  Finance 
cities  were  not  granted  the  general  powers  of  taxation.  To 
surrender  such  entirely  to  the  cities  might  disrupt  the  financial 
system  of  the  state  and  possibly  interfere  with  the  state's 
resources  not  only  in  taxation  but  in  other  fields.  Closely 
connected  with  taxation  is  the  power  to  incur  debts.  Since 
the  cities  contain  more  taxable  wealth  than  the  rural  areas, 
the  states  cannot  well  allow  the  cities  the  complete  and  free 
use  of  that  wealth ;  to  do  so  would  hamper  the  state.  No 
city,  whether  from  its  own  point  of  view  or  that  of  the 
state,  should  be  allowed  to  bankrupt  itself  by  a  heavy  load 
of  debt. 

The  greater  part  of  the  duties  of  the  municipal  police  is  (3)  Police 
the  enforcement  of  state  laws.  As  such  they  are  emphatically 
state  officials  and  suitable  subjects  for  state  supervision.  When 
it  is  remembered  that  the  percentage  of  crime  is  higher  in  the 
cities  than  in  the  state  at  large  and  that  the  rapid  means  of 
transportation  which  the  motor  puts  at  the  disposal  of  the 
criminal  makes  capture  not  always  certain,  it  is  clear  that 
the  inhabitants  of  the  entire  state  are  vitally  interested  in  the 
preservation  of  law  and  order  in  the  cities. 

The  question  of  public  health  is  very  important.  It  has  (4)  Health 
been  shown  that  the  death  rate  increases  with  the  density  of 
population,  and  there  is  no  doubt  that  the  concentration  of 
population  in  the  cities  is  an  inviting  field  for  epidemics.  The 
health  laws  of  the  state  must  be  applied  to  city  and  rural 
districts  alike,  and  the  entire  state  is  interested  and  affected 
by  the  water  supply  of  the  city  and  the  disposal  of  its  waste. 

Education  is  coming  more  and  more  to  be  regarded  as  a  state  (5)  Educa- 
concern.  In  a  democratic  system  of  government  this  must  be 
so  because  the  success  of  the  government  depends  in  a  large 
measure  upon  the  intelligence  of  the  electorate.  One  must 
admit,  however,  that  the  school  systems  of  the  cities  are  gen- 
erally superior  to  those  in  rural  districts,  yet  it  is  of  vital 
importance  that  no  opportunity  be  allowed  for  any  deteriora- 
tion of  standard. 


390      STATE  AND  MUNICIPAL  GOVERNMENT 


Methods  of 
state 
control : 
(i)  Legis- 
lative 
control 


(6)  Charity  Charitable  relief  is  steadily  becoming  more  a  matter  of 
interest  to  the  entire  state.  State  institutions  on  the  whole  have 
proved  superior  to  those  maintained  by  local  agencies.  With 
the  more  scientific  administration  of  charity  it  is  probable  that 
the  relief  of  the  poor,  the  unfortunate,  or  the  defective  can  be 
administered  more  satisfactorily  through  the  state  authorities 
than  by  the  duplication  made  necessary  if  the  municipalities 
are  to  be  responsible. 

The  legislative  control  of  municipalities  was  a  principle  of 
English  law  which  was  transplanted  to  the  colonies ;  it  had  its 
origin  in  the  theory  of  the  supremacy  of  Parliament  and  the 
centralized  government  of  England.  Although  it  has  been 
largely  abandoned  in  England  in  actual  practice,  if  not  in 
form,  it  still  persists  in  the  United  States.  Theoretically  the 
doctrine  views  the  city  as  a  corporation  subject  (like  all 
corporations)  to  the  control  of  the  state  legislature.  The  legis- 
lature grants  the  charter,  and  the  legislature  may  extend, 
amend,  or  diminish  the  powers  of  the  city.  Viewing  the  city 
charter  alone  as  the  constitution  of  a  subordinate  corporation, 
this  legislative  control  might  be  justified ;  but  when  the  mani- 
fold functions  and  activities  of  the  city  are  examined  and  the 
intense  interest  of  the  state  in  the  efficient  performance  of 
these  functions  is  realized,  it  will  be  seen  that  legislative 
control  has  serious  defects.  The  defect  is  in  the  very  nature  of 
legislation.  Legislation  is  the  formulation  of  rules,  not  their 
enforcement.  Legislative  control,  therefore,  attempts  to  formu- 
late, by  means  of  statutes,  minute  rules  for  every  imaginable 
situation ;  but  such  a  task  is  impossible,  since  cities  vary  in 
their  requirements  and  necessities.  Thus,  constitutional  provi- 
sions to  the  contrary,  legislatures  are  constantly  obliged  in 
one  form  or  another  to  pass  special  legislation.  Again,  the 
legislature  is  unable  to  enforce  its  acts  and  is  obliged  to  rely 
upon  the  courts.  Finally,  legislatures  themselves  are  ill  adapted 
to  foresee  the  necessities  of  the  cities  and  are  often  unwilling 
or  unable  to  solve  city  problems.  The  political  intliience  which 
the  city  member  may  exert  in  the  legislature  not  infrequently 
leads  that  body  to  adopt  measures  contrary  to  the  best  interests 


RELATION  OF  THE  CITY  TO  THE  STATE     391 

of  city  and  state  alike.    This  has  been  emphatically  proved  in 
connection  with  the  control  of  municipal  indebtedness. 

Since  the  cities  are  corporations  subject  to  law,  the  courts  (2)judiciai 
might  be  expected  to  be  able  to  supplement  the  legislature  in 
enforcing  its  provisions.  In  certain  matters  this  is  true.  In 
enforcing  a  statute  the  courts  may,  for  example,  invalidate  a 
city  loan  made  contrary  to  law,  but  in  such  cases  the  political 
effect  is  awkward.  The  loan  has  been  issued  and  the  bonds 
are  in  the  hands  of  the  public,  who  have  a  natural  feeling  of 
resentment  that  they  should  be  made  to  suffer  loss  from  the 
act  of  a  city  council.  In  the  second  place,  the  judges  and 
prosecuting  officers,  who  enforce  the  state  law,  are  the  products 
of  the  same  political  system  which  controls  the  city  government, 
and  their  action  and  point  of  view  are  not  without  bias  when 
passing  upon  the  acts  of  municipal  authorities.  There  is,  more- 
over, a  wide  field  of  municipal  activity  which  is  properly  be- 
yond judicial  control.  This  is  its  discretionary  power.  The 
courts  have  no  control  over  the  exercise  of  the  discretionary 
powers  granted  by  the  city  charter,  and  the  legislature  can  only 
forbid  or  prohibit.  Thus  the  effective  supervision  of  munici- 
palities  requires  some  other  form  of  control  than  legislative 
or  judicial. 

The  idea  of  administrative  control  originated  in  Europe,  and  (3)  Admin- 
much  of  the  success  of  municipal  government  in  Prussia  is  due  control 
to  the  relative  absence  of  legislative  control  and  the  prevalence 
of  administrative  control.  The  advantages  are  obvious,  par- 
ticularly as  regards  discretionary  powers.  No  legislature  can 
hope  to  foresee  all  the  wants  of  all  the  cities,  nor  are  these 
cities  or  their  needs  uniform.  But  any  legislature  may  lay 
down  certain  simple  and  comprehensive  rules  vesting  in  ad- 
ministrative authorities  the  power  to  apply  these  rules  with 
such  variations  as  the  needs  of  the  cities  require.  To  an  in- 
creasing degree  the  states  are  adopting  this  method.  State 
civil-service  commissions  frequently  hold  examinations  and 
apply  the  provisions  of  the  civil-service  law  directly  to  the 
cities.  The  finances  of  the  cities  in  many  states  are  subject  to 
administrative  state  control,  while  the  city  boards  of  education 


392      STATE  AND  MUNICIPAL  GOVERNMENT 

and  of  health  are  governed  by  the  rules  and  regulations  of  the 
state  administrative  authorities.  Although  administrative  con- 
trol has  not  developed  to  the  same  extent  in  this  country  that 
it  has  in  England  or  in  Europe,  yet  the  results  are  generally 
excellent.  It  has  somewhat  limited  the  evils  of  special  legis- 
lation, it  has  avoided  the  delay  and  injustice  of  judicial  control, 
and  it  has  brought  about  a  more  prompt  and  efficient  state 
control  in  those  fields  where  state  administration  is  desirable. 


CHAPTER  XXII 

THE  CITY  AS  A  POLITICAL  UNIT 
As  a  political  unit  the  city  must  be  examined  from  two  points  Relation  of 

-       .  T      .  .  ,  .         ,  ,..,,.  the  political 

of  View.  It  IS  an  area  within  the  state,  and  its  inhabitants  organization 
form  a  section'  of  the  general  state  electorate,  whose  action  and^hr^ty 
determines  in  part  the  political  action  of  the  state.  But  the 
city  is  also  a  political  unit  with  its  own  very  definite  problems 
to  solve.  The  population  of  the  city,  moreover,  as  has  been 
shown,  has  different  characteristics  from  that  of  the  state  at 
large.  The  political  machinery  in  a  city,  therefore,  is  required 
to  function  for  two  purposes — for  the  state  and  for  the  city 
itself.  The  organization  and  operation  of  this  machinery  is 
most  important,  but  it  is  conditioned  by  state  laws  rather 
than  by  municipal  necessities.  As  such,  it  has  been  treated 
in  Part  II ;  in  this  chapter  it  is  desirable  not  to  repeat  what 
has  been  previously  said,  but  to  show  how  the  peculiar  com- 
position and  problems  of  the  city  affect  the  general  principles 
of  political  action. 

The  Municipal  Electorate 
In  any  community  the  composition  of  the  electorate  is  of  importance 

,    .  ,.,,..  .         .  .  ^         ...   ot  the 

vital  importance;  most  emphatically  is  it  so  m  cities.  It  will  municipal 
be  remembered  that  the  alien  element  is  larger  in  the  city  ^i<^^^°''^t^ 
population  than  in  the  country  and  that  in  some  cities  the 
foreign-born  and  their  children  far  outnumber  the  native  ele- 
ment. The  city  contains  a  greater  proportion  per  thousand  of 
people  in  middle  life.  Fewer  city-dwellers  own  their  homes, 
and  thus  the  city  electorate  lacks  the  steadying  influence  found 
in  the  country.  A  greater  proportion  of  the  population  of  the 
city  pay  no  taxes  at  all  or  only  the  poll  tax.  With  these  con- 
ditions in  mind,  it  must  be  remembered  that  this  electorate, 
through  some  form  or  other  of  political  action,  is  called  upon 

393 


394      STATE  AND  MUNICIPAL  GOVERNMENT 


Electoral 
qualifica- 
tions fixed 
by  the 
state : 


(i)  Citizen- 
ship 


to  perform  directly  or  through  its  representative  the  manifold 
functions  which  the  density  of  the  population  requires.  The 
municipal  government,  which  is  the  creature  of  the  municipal 
electorate,  is  constantly  facing  complex  and  technical  problems 
and  is  spending  vast  sums  of  money  in  their  solution.  On  no 
other  group  of  the  population  are  such  burdens  laid.  No 
other  group  is  so  heterogeneous,  so  lacking  in  tradition,  nor  so 
susceptible  to  political  organization  and  manipulation. 

The  electoral  qualifications  for  the  cities  are  fixed  by  state 
law.  In  spite  of  the  different  characteristics  of  the  city  popu- 
lation, the  legislatures  have  treated  the  electorate  of  the  state 
as  a  unit;  they  have  not  taken  into  account  the  various  dif- 
ferences just  described  nor  the  peculiar  problems  which  the 
cities  face.  From  the  point  of  view  of  the  state  as  a  political 
unit,  perhaps  this  is  justifiable,  for  in  state  political  action  the 
peculiarities  of  the  city  population  are  neutralized  or  corrected 
by  those  of  the  rural  population.  In  the  control  of  municipal 
affairs,  however,  there  is  no  such  corrective  influence,  and  the 
city  electorate,  with  all  its  limitations,  is  obliged  to  face  and 
attempt  to  solve  its  peculiar  problems. 

]\Iost  countries  require  citizenship  as  a  qualification  for  vot- 
ing. This  is  not  invariably  true  in  the  United  States,  for  nine 
states  allow  aliens  to  vote  when  they  have  declared  their  inten- 
tion to  become  citizens.^  In  former  times — even  where  citi- 
zenship was  required — the  large  cities  furnished  fertile  fields 
for  naturalization  frauds,  and  it  was  not  uncommon  for 
political  organizations  to  furnish  evidence  and  witnesses  for 
the  purpose  of  naturalizing  whole  groups  of  aliens  whose  vote 
they  might  control.-  In  recent  years,  however,  the  whole  pro- 
cedure of  naturalization  has  been  revised  and,  by  the  control 
of  the  Department  of  Justice  through  the  United  States  district 
attorneys,  has  been  made  much  more  effective. 


1  Arkansas,  Indiana,  Kansas,  Missouri,  Nebraska,  South  Dakota,  and 
Texas.  In  two  stales  aliens  are  allowed  to  vote  who  are  otherwise 
qualified  and  have  dcilarrd  their  intention  to  become  citizens  before 
November  8,   1804   f Michigan)   and   December   i,   iqoS    (Wisconsin). 

-James  Brycc,  The  American  Commonwealth,  Vol.  II,  p.  103,  gives 
a  description  of  these  conditions. 


THE  CITY  AS  A  POLITICAL  UNIT  395 

The  voting  age  in  every  state  is  fixed  at  twenty-one,  and  (2)  Age  and 
since  the  ratification  of  the  Nineteenth  Amendment    (1920) 
disabilities  with  regard  to  sex  have  been  removed. 

The  requirements  for  residence  vary  greatly  in  the  different  (3)  Resi- 
states.  In  general  they  are  fourfold.  The  first  is  residence  in 
the  state,  which  varies  from  two  years  ^  to  only  three  months.^ 
The  most  common  period  is  one  year.  Residence  in  the  county 
is  required  for  a  definite  period,  from  one  year  in  Alabama  to 
ten  days  in  Wisconsin.'  Residence  within  the  city  varies  from 
one  year  in  Mississippi  and  Virginia  to  ten  days  in  Iowa  and 
the  other  states."*  Residence  in  the  electoral  districts,  precinct, 
or  ward  is  also  essential.  This  varies  from  one  year  in  Missis- 
sippi to  one  day  in  Maryland.  Sixteen  states  demand  a  thirty 
days'  residence.^ 

The  term  "residence"  is  a  technical  one.    It  differs  from  the  Meaning 

of ''  iGsi— 

terms  "domicile"  and  "inhabitant"  in  that  it  is  largely  deter-  aence" 
mined  by  the  desire  of  the  individual.  A  man's  legal  residence  is 
commonly  where  he  says  it  is,  where  he  intends  to  remain,  or 
in  the  particular  community  of  which  he  wishes  to  be  consid- 
ered a  member.  Since  in  the  United  States  state-income  and 
personal-property  taxes  are  levied  by  the  jurisdiction  in  which 
the  citizen  has  his  residence,  it  is  often  of  great  importance  to 
the  individual  just  where  he  will  declare  his  residence  to  be. 
Cases  are  not  unknown  of  a  person's  keeping  his  residence  in 
a  state  which  has  no  income  tax  or  in  a  town  or  city  where  the 
tax  rate  for  personal  property  is  low  or  the  assessors  complacent. 
The  restriction  of  the  franchise  to  legal  residence  in  a  city 
has  an  unfortunate  effect.  It  is  a  matter  of  common  knowledge 
that  many  of  the  large  cities  are  surrounded  by  suburbs  in 
which  live  a  large  population  who  draw  their  livelihood  from 

1  Alabama,  Louisiana,  Mississippi,  North  Carolina,  Rhode  Island, 
South  Carolina,  and  Virginia. 

2  Maine. 

^Oregon  and  Pennsylvania  make  no  specified  requirement  for  county 
residence. 

"^lowa,  Nebraska,  South  Dakota,  West  Virginia,  Wisconsin,  and 
Wyoming. 

5  For  table  of  qualifications  see  the  annual  editions  of  the  American 
Year  Book  and  World  Almanac. 


396      STATE  AND  MUNICIPAL  GOVERX:\IENT 


Effect 

of  the 

residence 

requirement 

on  the 

municipal 

electorate 


(4)  Educa- 
tion 


(5)  Owner- 
ship of 
property 


and  are  vitally  interested  in  the  city  and  its  administration. 
These  persons  are  deprived  of  any  share  in  the  municipal 
government,  although  their  business  is  carried  on  in  the  city. 
This  suburban  element,  moreover,  is  often  the  very  one  which 
the  city  can  least  afford  to  do  without.  It  generally  represents 
moderate  success  in  business  life  and  a  higher  grade  of  intelli- 
gence and  stability  than  is  found  in  the  heterogeneous,  shifting 
population  of  the  city.  In  France  and  in  Italy,  on  the  other 
hand,  it  is  recognized  that  a  person  who  pays  taxes  in  the  city 
may  have  a  greater  interest  there  than  in  the  place  of  his 
domicile,  and  he  is  therefore  allowed  to  choose  in  which  place 
he  will  vote.  In  England  occupation  of  premises  either  for 
domicile  or  business  purposes  takes  the  place  of  the  residence 
requirement.  Thus  in  foreign  cities  it  is  possible  that  persons 
who  are  vitally  interested  in  the  affairs  of  the  city  may  take 
part  in  its  management,  and  the  city  is  not  deprived  of  the 
votes  of  an  interested  class. 

The  qualifications  in  regard  to  literacy  are  fixed  by  the 
state  authorities  and  have  been  fully  discussed  elsewhere.^  It 
should  be  remembered,  however,  that  the  percentage  of  illiter- 
ates is  lower  in  the  cities  than  in  the  rural  districts.  It  is  too 
short  a  time  since  the  passage  of  the  Nineteenth  Amendment 
to  determine  whether  the  percentage  of  illiterate  voters  in  the 
cities  is  now  greater  than  that  in  the  rural  districts.  The  or- 
ganizations attempting  to  register  women  for  the  elections  of 
1920  found  in  some  cities  a  surprisingly  large  number  who 
could  not  pass  the  reading  and  writing  test  which  is  required 
in  some  states. 

Rhode  Island  is  the  only  state  which  requires  ownership  of 
property  as  a  qualification  for  the  city  franchise.  The  constitu- 
tion of  1842  required  the  ownership  of  real  estate  valued  at 
S134,  or  the  payment  of  rent  to  the  amount  of  S7.-  In  1888 
manhood  suffrage  was  established  for  state  elections,  but  no 
person  was  allowed  to  vote  for  the  election  of  the  city  council 
or  upon  the  proposition  to  impose  a  tax  or  expend  money  in 
any  town  or  city  unless  he  had  paid  a  tax  on  property  valued 

^See  papes  40-45. 
-Article  II,  Sect.  i. 


THE  CITY  AS  A  POLITICAL  UNIT  397 

at  $134.^    In  Virginia  the  legislature  may  prescribe  a  property- 
qualification  not  exceeding  $250  for  any  county,  city,  or  town.- 

Payment  of  poll  taxes  is  made  a  qualification  for  voting  in  (e)  Payment 
several  states."  In  certain  others  the  payment  of  all  state 
taxes  is  also  required.*  Massachusetts  and  some  other  states 
require  only  that  the  voters  shall  have  been  assessed  for  the 
poll  tax,  which  is  a  very  different  thing  from  having  paid  it. 
Where  the  requirement  is  that  the  voter  shall  have  paid  it,  in- 
terested political  organizations  not  infrequently  pay  this  tax 
for  certain  kinds  of  voters.  This  is  expressly  forbidden  by  the 
constitutions  of  Alabama  and  Louisiana,  and  in  those  states, 
as  well  as  in  most  of  the  Southern  states,  the  provisions  requir- 
ing the  payment  of  taxes  serve  to  disfranchise  a  large  part  of 
the  negro  vote.  A  requirement  that  the  voter  shall  have  merely 
been  assessed  for  the  poll  tax  is  of  practically  no  use,  for  it 
shuts  out  no  one. 

The  preparation  of  the  voting  list  involves  the  same  proce-  (7)  Regis- 
dure  for  state  and  municipal  elections  and  is  prescribed  by  the 
state  laws  already  discussed.^  But  the  problem  in  the  densely 
populated  city  is  vastly  different  from  that  in  the  rural  dis- 
tricts, and  the  laws  of  many  states  prescribe  a  different  proce- 
dure. The  most  effective  method  requires  personal  registration 
for  each  election,  as  is  the  case  in  some  of  the  larger  cities. 
This,  however,  has  been  felt  to  place  too  great  a  burden  upon 
the  voter,  and  in  a  few  states  it  is  the  practice  to  keep  the 
voter's  name  on  the  list  as  long  as  he  continues  to  be  assessed 
for  taxes.  This  method  removes  the  test  of  continued  interest 
in  elections  which  one  writer  has  found  so  desirable.*^ 

•1  Amendment  VII. 

2  See  Index  Digest  of  State  Constitutions. 

"Alabama,  Arkansas,  Louisiana,  Mississippi,  North  Carolina,  Rhode 
Island,  South  Carolina,  Tennessee,  Texas,  and  Mrginia. 

^Mississippi,  Pennsylvania,  and  South  Carolina  (of  those  not  registered 
before  1898). 

5 See  pages  45,  61,  62. 

f' See  A.  N.  Holcombe,  State  Government  in  the  United  States,  p.  158. 
For  a  contrary  view  see  W.  B.  Munro,  The  Government  of  American 
Cities,  p.  118. 


398      STATE  AND  MUNICIPAL  GOVERNMENT 


The  Municipal  Electorate  in  Action 


Work  of  the 
electorate : 


(i)  Nomi- 
nations 


Nomi- 
nations 
generally 
made  by 
caucuses 


Closed 
primaries 


The  non- 
partisan 
primary 


The  functions  of  the  municipal  electorate,  like  those  of  the 
state,  are  primarily  in  the  choice  of  the  officers  and  members 
of  the  municipal  council.  Through  these  officials,  chosen  by 
the  municipal  electorate,  the  greater  part  of  the  functions  of 
the  city  is  exercised.  It  is  true  that  the  devices  of  direct  legis- 
lation are  used  in  municipal  government  to  a  larger  degree  than 
in  state  affairs,  but  the  greater  part  of  the  duties  of  the  elec- 
torate is  confined  to  the  nomination  and  election  of  officers. 
The  methods  by  which  these  functions  are  performed  are  of 
importance  not  only  to  the  municipality  itself  but  also  to  the 
state,  of  which  the  municipality  is  a  part. 

The  whole  process  of  nomination  has  been  fully  discussed 
with  regard  to  state  elections,  and  the  merits  of  the  convention 
system  and  the  primaries  have  been  presented.  It  is  only  nec- 
essary here  to  note  the  differences  which  distinguish  municipal 
political  action  from  that  of  the  state  at  large.  First,  the 
convention  system  is  absent.  Except  in  the  largest  cities,' nomi- 
nations for  municipal  officers  are  commonly  made  in  the  caucus 
or  primary.  Thus  the  discussion  of  the  relative  merits  of  the 
convention  and  the  direct  primary  for  municipal  elections  is 
theoretical  only.  It  might  be  that  municipal  conventions  would 
have  nominated  better  candidates,  but  inasmuch  as  the  conven- 
tion system  has  been  so  rarely  used  in  municipal  affairs,  little 
data  is  available  on  which  to  base  a  judgment.  In  practically  all 
cities  the  caucuses  or  primaries  were  once  confined  to  the  mem- 
bers of  the  political  party,  and  in  some  cities  participation  in 
the  primary  could  be  obtained  only  by  election  to  it.  Although 
in  general  such  a  severe  restriction  was  not  required  after  the 
state  began  to  interest  itself  in  the  process  of  nomination,  the 
control  of  the  primaries  is  still  in  the  hands  of  the  members  of 
the  party. 

The  theory  of  the  nonpartisan  primary  is  that  pariy  desig- 
nations have  no  place  upon  the  municipal  ballot.  It  is  both 
an  open  and  a  direct  primary;  that  is,  it  nominates  candidates 
directly  to  office  without  the  intervention  of  a  convention  and 
it  is  open  because  all  members  of  the  electorate  may  attend 


THE  CITY  AS  A  POLITICAL  UNIT  399 

irrespective  of  tlieir  party.  The  names  appear  on  the  ballot 
as  the  result  of  a  petition  signed  by  a  small  number  of  qualified 
voters,  usually  twenty-five.  They  are  not  in  party  columns, 
however,  and  are  without  party  designation.  The  candidates 
for  each  office  are  arranged  either  alphabetically  or  by  lot. 
Without  any  guide  the  voters  are  asked  to  pick  out  from  the 
candidates  the  ones  they  wish  to  nominate.  In  counting  the 
ballots  the  two  candidates  who  receive  the  highest  number  of 
votes  are  declared  nominated  and  their  names,  and  theirs 
only,  appear  on  the  ballot  at  election.  In  some  states,  how- 
ever, if  any  one  candidate  receives  a  clear  majority  of  the 
votes  cast,  he  is  declared  elected  without  the  necessity  of  the 
formal  election. 

The  nonpartisan  primary  is  strictly  not  a  primary,  but  Merits  and 
a  preliminary  election.  As  such,  it  has  certain  merits  and  the  non- 
defects — to  a  slight  degree  it  encourages  independent  can-  p^^^ 
didates ;  furthermore,  it  narrows  the  choice  at  election  to  two 
candidates  and  thus  prevents  the  election  of  any  official  by 
a  minority  of  the  votes  cast,  as  frequently  occurs  when 
the  final  ballot  contains  several  candidates.  One  of  the 
greatest  objections,  however,  is  the  burden  which  is  put  upon 
the  voter.  Nomination  through  the  medium  of  parties  gives 
some  information  to  the  voter;  the  party  designation,  while 
not  necessarily  a  certificate  of  character  and  ability,  does 
assure  the  voter  that  the  candidate  is  acceptable  to  the  party 
with  which  he  generally  acts.  This  is  entirely  wanting  on  the 
ballots  in  the  nonpartisan  primary.  The  other  defects  of  the 
nonpartisan  primary  are  those  which  have  been  mentioned  in 
discussing  the  direct  primary  and  deal  with  both  the  cost  of 
the  system  and  the  character  of  the  candidates  nominated.^ 
The  nonpartisan  primary  was  first  used  in  Iowa  in  those  cities 
adopting  commission  government,  and  has  since  been  adopted 
by  other  cities. 

Nomination  by  petition  is  an  attempt  to  do  away  entirely  Nomination 

.  ,       ,  ,       ,        .  , .  ....         by  petition 

With  the  system  both  of  party  conventions  and  of  primaries, 
whether  closed  or  open,  direct  or  nonpartisan.  According  to 
this  method  the  names  of  the  candidates  are  placed  upon  the 

iSee  pages  68-74. 


400      STATE  AND  MUNICIPAL  GOVERNMENT 

ballot  as  the  result  of  a  petition.  In  Boston,  when  it  was  first 
adopted  in  1909,  the  signatures  of  5000  voters  were  required; 
in  1 913  this  was  reduced  to  2500.  The  petitions  for  nomina- 
tion bear  the  name  and  address  of  each  candidate,  but  no 
party  designation.  After  being  signed  they  are  given  to  the 
election  commissioners  for  verification.  Unlike  the  primary 
system,  nomination  by  petition  gives  every  class  or  group  in 
the  community  an  opportunity  to  place  the  name  of  a  candi- 
date upon  the  ballot.  This,  however,  is  a  dubious  advantage, 
for  as  the  number  of  candidates  on  the  ballot  increases,  the 
possibility  of  the  election  by  the  minority  of  the  voters  also 
increases.  Nor  can  it  be  proved  that  the  caliber  of  the  candi- 
dates nominated  by  petition  is  any  higher  than  that  of  those 
chosen  by  the  convention  or  primary  system. 
Effect  upon  In  theory  these  systems  both  encourage  independence  and 
ganizatVon  weaken  the  control  of  the  party  organization.  Without  doubt 
independence  is  encouraged,  but  it  may  be  questioned  whether 
the  party  organization  is  very  much  hampered  in  its  control 
by  this  independence.  As  has  been  pointed  out,^  under  the  old 
method  the  party  organization  was  forced  to  conciliate  rather 
than  to  discipline.  Under  the  primary  system  any  independent 
candidate  may  test  his  fate;  he  has  no  complaint  if  he  fails, 
and  the  leaders  of  the  organization  can  usually  control  enough 
votes  to  crush  an  insurgent.  Although  nomination  by  petition 
is  in  theory  entirely  independent  of  the  party  organization, 
yet  the  leaders  of  the  organization  generally  in  secret  caucus 
pick  out  the  candidates  and  circulate  petitions  in  their  favor. 
Merits  of  An  ideal  scheme  of  nomination  has  not  yet  been  devised  for 

mumcipai  use  in  American  cities.  In  all  systems  that  have  been  attempted 
either  the  power  of  the  party  organization  is  everywhere  felt 
or  else  the  voter  is  left  entirely  without  guidance.  According 
to  Professor  Munro  the  system  should  be  simplified,-  thereby 
decreasing  the  honor  which  most  Americans  attach  to  mere 
nomination.  Certainly  in  the  cities  of  other  countries  a  simple 
and  easy  method  of  nomination  seems  to  work  well,  but  it  may 
be  questioned  whether  this  would  be  the  case  in  the  United 

^W.  B.  Munro,  The  Government  of  American  Cities,  pp.  135-136. 
-Ihifi.  pp.  138-13Q. 


nomination 


THE  CITY  AS  A  POLITICAL  UNIT  401 

States.  It  is  to  be  feared  that  for  many  years  to  come  Ameri- 
can ballots  would  be  burdened  with  the  names  of  a  multitude 
of  candidates  should  we  adopt  the  French  system,  by  which 
any  citizen  may  announce  his  candidacy,  or  the  English  method, 
which  requires  the  petition  to  be  signed  by  only  ten  voters. 

Municipal  elections  are  everywhere  conducted  according  to  (2)  Elections 
state  laws.  Ordinarily  these  state  laws  make  no  difference  be- 
tween the  procedure  for  the  election  of  state  officers  and  for 
the  election  of  purely  municipal  officers.  In  some  cases,  how- 
ever, chiefly  as  the  result  of  a  special  law  or  privilege  granted 
in  the  charter,  a  different  date  and  different  procedure  is 
adopted  for  municipal  elections  than  is  followed  at  state  and 
national  elections. 

In  the  attempt  to  remove  municipal  elections  from  the  con-  Time  of 
trol  of  state  and  national  parties,  some  states  have  set  the  date  ""ctions 
of  these  elections  at  a  different  time  from  the  others.  When 
the  elections  are  held  on  the  same  date  the  state  and  the 
municipal-party  organizations  cooperate  and  manage  a  single 
campaign.  This  in  itself  is  not  objectionable  if  the  best  inter- 
ests of  both  the  state  and  the  city  were  considered,  but  such 
is  not  commonly  the  case.  In  small  cities  municipal  interests 
are  subordinated  to  the  advantages  of  the  party  in  the  state, 
while  in  very  large  cities  the  reverse  may  hold  true.  Thus, 
when  the  election  dates  coincide,  it  is  almost  impossible  to 
have  an  unprejudiced  expression  of  opinion  on  municipal  issues. 
Political  action  in  the  city  is  unavoidably  colored  by  the 
national  or  state  party  issues.  The  great  argument  in  favor 
of  holding  the  elections  on  the  same  date  is  the  one  of  expense. 
It  costs  not  far  from  a  dollar  for  every  ballot  cast  at  a  munici- 
pal election.^  In  addition  there  must  be  considered  the  legiti- 
mate expenses  of  the  candidates  and  of  the  party  organizations, 
which,  although  raised  by  subscription  rather  than  by  taxation, 
are  met  by  the  inhabitants  of  the  city.  To  those  who  believe 
in  the  strong  control  of  the  city  by  the  state,  anything  which 
would  insure  identity  of  party  in  both  state  and  city  would  be 
advantageous.  To  such  it  is  an  advantage  to  hold  the  municipal 
and  state  elections  on  the  same  day. 

iW.  B.  Munro,  The  Government  of  American  Cities,  p.  140. 


402      STATE  AND  MUNICIPAL  GOVERNMENT 

The  ballot  One  great  disadvantage  in  setting  the  same  day  for  both 
state  and  municipal  elections  is  that  it  complicates  the  ballot. 
Either  separate  ballots  must  be  distributed  for  the  state  and 
for  the  municipal  elections,  or  the  state  ticket,  already  too 
long,  must  be  still  further  complicated  and  lengthened.  The 
effect  on  elections  of  the  long  and  intricate  ballot  has  already 
been  discussed  and  the  advantage  of  the  short  ballot  set  forth. ^ 
The  ballots  for  municipal  elections  have  ordinarily  been  shorter 
than  those  for  the  state;  fewer  officers  have  as  a  rule  been 
chosen  by  direct  popular  election  in  municipal  government  than 
in  the  government  of  the  state.  The  tendency,  moreover,  is 
toward  still  further  decreasing  the  length  of  the  ballot  by 
additions  to  the  appointing  power  of  the  mayor,  the  commis- 
sion, or  the  city  manager.  In  an  increasing  number  of  cities 
it  has  become  evident  that  popular  election  is  not  the  best 
means  to  choose  officers  who,  as  far  as  their  municipal  func- 
tions are  concerned,  are  very  frequently  engaged  in  the  man- 
agement or  administration  of  technical  or  business  departments. 

Preferential  The  system  of  preferential  voting  has  already  been  de- 
scribed.- It  has  been  used  in  a  modified  form  at  the  primary 
elections  of  several  states,  but  nowhere  in  the  regular  state 
elections.  More  than  forty  cities,  however,  have  adopted  it.'' 
The  advantage  of  the  system  is  fourfold :  it  insures  election 
by  the  majority,  thereby  preventing  what  has  been  proved  so 
unfortunate — a  minority  election  resulting  from  the  multiplic- 
ity of  candidates ;  it  avoids  the  trouble  and  expense  of  a  second 
election  where  the  law  requires  a  majority  for  choice;  it 
enables  the  voter  to  express  his  entire  opinion  and  not  simply 
his  first  choice ;  it  still  further  weakens  the  power  of  the  organi- 
zation or  forces  the  latter  to  select  better  candidates.  It  would 
seem  to  be  admirably  adapted  to  municipal  elections. 

Proportional      Proportional  representation  should  be  sharply  distinguished 

represen-         .  .  ...  »      i         i  •  ,  c  •    i  • 

tation  from  preferential  voting.    As  has  been  said,  preferential  voting 

insures  the  choice  of  the  majority.    Proportional  representation 

^Sec  paKC'S  95-90. 

" See  pane  101. 

^See  Bulletin  No.  27  in  Hulletins  for  the  Massachusetts  ConstiUitioiial 
Convention,  Vol.  II,  pp.  307-319.  Papc  313  ^ives  a  list  of  the  cities 
which   have  adopter!  it. 


THE  CITY  AS  A  POLmCAL  UNTI  403 

is  based  on  the  principle  ''that  each  political  party  or  'each 
considerable  party  or  group  of  opinion'  shall  be  entitled  in  all 
representative  bodies  to  a  number  of  representatives  propor- 
tionate to  the  number  of  its  voting  members."^  The  workings 
of  this  system  have  already  been  described.^  It  remains  only 
to  discuss  its  adaptation  to  municipal  affairs.  As  already 
pointed  out,  it  is  used  in  no  state  and  in  only  two  cities  of  any 
considerable  size — Ashtabula,  Ohio,  and  Kalamazoo,  Michi- 
gan. Proportional  representation  obviously  cannot  apply  to 
the  election  of  municipal  officers.  For  thfse  some  system  of 
preferential  voting  is  desirable.  The  tendency  is  to  decrease 
the  number  of  directly  elected  officers  and  to  vest  more  power 
in  the  council  or  commission.  Could  proportional  representa- 
tion be  tried  in  the  election  of  councilors  with  advantage? 
In  both  Ashtabula  and  Kalamazoo,  where  proportional  repre- 
sentation has  been  tried,  the  election  worked  according  to  the 
theory,  and  the  different  groups  of  the  electorate  gained  their 
proportional  representation  in  the  municipal  council.^  It  may 
be  questioned,  however,  whether  a  council  made  up  of  mem- 
bers chosen  to  represent  racial,  religious,  and  social  groups 
is  best  adapted  to  administer  the  affairs  of  a  city.  Race  divi- 
sions are  too  apt  to  appear  in  municipal  politics,  and  shades  of 
opinion  do  not  always  coincide  with  these  racial  divisions. 

Municipal  Parties 

The  necessity   for  the  part  played  by  political   parties  in  political 
the  states  has  already  been  described.'    These  same  duties  and  munici-'" 
the  same  necessity  exist  in  cities.    The  municipal  government  P^^iti^s 
cannot  be  carried  on  without  political  action,  and  in  all  but 
the  very  smallest  cities  this  political  action  must  be  taken 

iSee  Bulletin  No.  28  in  Bulletins  for  the  Massachusetts  Constitutional 
Convention,  Vol.  II,  pp.  325-334. 

"See  pages  102-104. 

^See  "Kalamazoo  Tries  Proportional  Representation,"  in  National 
Municipal  Review,  Vol.  VII,  pp.  339-348;  also  W.  E.  Boynton,  "Propor- 
tional Representation  in  Ashtabuk,"  in  National  Municipal  Review, 
Vol.  VI,  pp.  87-90. 

■^See  pages  46-48. 


404      STATE  AND  MUNICIPAL  GOVERNMENT 

through  organized  groups,  or  poHtical  parties.  The  organiza- 
tion of  poHtical  parties  with  their  rings  and  bosses,  their 
methods  of  raising  money,  their  legitimate  and  illegitimate 
expenditures,  and  their  all-pervasive  influence,  has  also  been 
described.^  In  fact,  the  most  perfect  examples  of  party  organi- 
zation are  found  in  the  cities.  The  questions  for  discussion  in 
this  section  deal  not  so  much  with  the  general  problem  of 
parties  and  party  organizations  as  with  the  identification  of 
municipal  and  state  parties  and  the  possibilities  and  methods 
of  separating  them, 
Should  The  power  of  the  sovereign  state  of  the  United  States  is 

parties^and   distributed  between  the  national  and  state  governments.    So, 
state  parties  yyithin  the  States,  the  functions  of  state  government  are  divided 

be  identical?  '  ° 

between  the  state  itself  and  the  cities.  In  order  to  insure  the 
harmonious  working-out  of  any  policy  and  its  faithful  adminis- 
tration, it  is  necessary  for  the  group  favoring  that  policy  to 
dominate  both  state  and  municipal  governments.  The  easiest 
method  of  accomplishing  this  is  by  means  of  a  political  party 
which  shall  be  identical  in  the  state  legislature  and  in  the  city 
councils.  On  the  other  hand,  it  is  entirely  obvious  that  there 
are  different  questions  to  be  solved  by  national,  state,  and 
municipal  governments.  Sometimes  these  questions  conflict ; 
hence  a  single  or  identical  party  fails  to  give  satisfaction. 
Moreover,  sad  experience  has  shown  that  the  interests  of  the 
cities  are  too  often  treated  as  the  spoils  of  the  parties  successful 
in  state  affairs,  and  municipal  home  rule  was  designed  to  free 
the  city  from  too  complete  a  subordination  to  the  state.  But 
where  identical  parties  and  party  organizations  control  both 
the  state  and  municipal  elections,  the  promises  of  home  rule 
are  often  illusive.  Three  methods  have  been  tried  in  order  to 
meet  these  evils :  - 
(i)  Abolition      The  abolition  of  parties  has  been  attempted  in  those  cities 

of  parties  ,  •   i    i  ,  ,  .... 

which  have  adopted  nomination  by  the  nonpartisan  primary  or 
by  petition  and  which  have  removed  from  the  ballot  all  party 
designations.  Little  can  be  said  in  favor  of  such  radical  action. 
At  their  best,  parties   and   party  organizations  are  excellent 

'Sec  pages  56-60. 

2Scc  W.  B.  Munro,  The  Government  of  American  Cities,  pp.  155-161. 


THE  CITY  AS  A  POLITICAL  UNIT  405 

agents  for  the  precipitation  and  expression  of  the  popular  will ; 
at  their  worst,  party  organizations  and  political  parties  are 
what  the  electorate  allows  them  to  become.  The  remedy  or 
reform  is  always  in  the  hands  of  the  voters.  In  municipal 
politics  the  evil  lies  not  so  much  in  the  existence  of  parties 
for  formulating  views  and  selecting  candidates  for  office  as 
in  the  subordination  of  the  municipal  to  the  national  and 
state  parties. 

At  the  other  extreme  is  the  effort  to  create  strictly  municipal  (2)  Munici- 

,  1-  r  xi-    •     pal  parties 

parties.  These  parties  endeavor  to  formulate  a  policy  01  their 
own,  to  nominate  their  own  candidates  and,  if  successful,  to 
administer  the  affairs  of  the  city  according  to  their  principles. 
They  aim  to  be  genuine  political  parties,  with  the  usual  type 
of  party  organization,  and  they  try  to  fulfill  all  the  functions 
of  a  regular  political  party.  It  is  obvious  that  such  parties  can 
be  organized  only  in  the  largest  cities,  and  even  there  the 
difficulties  are  great.  Party  organization  is  expensive  and  is 
the  growth  of  time  and  tradition.  Groups  must  be  trained  to 
act  together  and  acquire  a  loyalty  to  a  definite  ideal  which 
seldom  exists  in  purely  municipal  affairs.  Important  as  are 
the  operations  of  municipal  government,  and  vital  as  they  are 
to  the  well-being  of  the  citizens,  they  seldom  arouse  that  pas- 
sionate attachment  which  is  the  characteristic  of  national  and 
state  parties.  It  is  true  that  in  New  York  the  Citizens'  Union 
in  1896  and  in  191 7  attempted  to  run  its  candidate  in  opposi- 
tion to  those  of  the  Democratic  and  Republican  parties,  but  in 
both  instances  it  was  unsuccessful,  although  in  the  former  year 
it  polled  more  than  150,000  votes.  In  London,  where  there 
are  nominally  municipal  parties,  the  division  is  largely  along 
the  lines  of  the  national  parties.^  The  municipal  field  seems 
narrow  compared  with  the  national.  The  most  likely  time  for 
the  success  in  the  formation  of  a  purely  municipal  party  is 
after  the  domination  of  one  of  the  state  parties  by  a  corrupt 
political  organization.  At  such  a  time  a  purely  municipal 
party  may  be  organized  in  order  to  oust  the  former  organi- 
zation.    It   rarely  happens,  however,   that   strictly   municipal 

^See  W.  B.  Munro,  The  Government   of  European   Cities,  pp.  346- 
347,  and  A.  L.  Lowell,  The  Government  of  England,  Vol.  II,  p.  151. 


4o6      STATE  AXD  MUNICIPAL  GOVERNMENT 

parties  have  long  lives.  They  may  be  effective  in  producing  a 
party  revolution,  but  they  are  apt  to  distintegrate  and  break 
up  when  faced  with  the  continued  problems  of  administering 
the  government. 
(3)  Fusion  A  more  successful  plan  of  combating  the  evils  of  state  domi- 
nation of  parties  is  by  "fusion."  This  is  an  attempt  to  get  one 
or  both  of  the  state  parties  to  adopt  in  their  platform  the 
program  desired  by  the  particular  group  in  the  city.  A  fusion 
is  brought  about  between  one  of  the  regular  parties  and  a 
group  (or  perhaps  a  bipartisan  group)  of  insurgents,  who  may 
force  the  leaders  of  one  party  to  adopt  their  program  and  to 
give  to  them  a  share  of  the  candidates.  This  method  has  been 
tried  with  success  in  many  cities.  A  "citizens'  ticket,"  a  "citi- 
zens' party,"  or,  in  1901  and  1914,  The  Citizens'  Union  in 
New  York  have  been  successful  as  the  result  of  persuading 
one  of  the  state  parties  to  accept  their  program.  This  method, 
however,  is  based  upon  the  supposition  that  there  are  a  suf- 
ficient number  of  independent  voters  to  desert  their  regular 
parties  and  vote  for  such  fusion  candidates  and  that  there  is  a 
political  party  willing  to  forego  the  advantages  of  a  straight 
party  platform,  candidate,  and  victory. 

The  Initiative,  Referendum,  and  Recall 

Direct  The  deviccs  for  direct  legislation  have  already  been  fully 

egis  ion  j^jgj,jjggg^j  jj^  dealing  with  state  government.^  It  should  be 
remembered  that  such  direct  action  was  first  attempted  in 
cities  and  towns  rather  than  in  states.  Except  in  so  far  as  the 
ratification  of  state  constitutions  is  concerned,  from  a  very 
early  time  the  cities  have  been  asked  to  express  their  approval 
or  disapproval  of  the  charters  framed  by  the  legislature.  More- 
over, many  laws  have  been  submitted  to  the  cities  in  order  to 
determine  their  local  application,  particularly  with  regard  to 
the  control  of  the  liquor  traffic.  This  type  of  direct  legislation 
does  not  involve  the  decision  regarding  general  law  or  the 
adoption  of  a  particular  measure,  but  concerns  rather  the 
application  of  a  law  which  has  been  discussed,  framed,  and 

'See  Chaplcr  \T. 


THE  CITY  AS  A  POLITICAL  UNIT  407 

adopted  by  the  legislature.  The  true  referendum  has  also  been 
used  by  cities  on  the  question  of  incurring  a  debt  or  of  the 
extension  of  the  debt  limit,  and  even  of  granting  certain  fran- 
chises. The  adoption  of  the  home-rule  principle,  moreover,  as 
applied  in  Ohio  and  Illinois,  required  a  popular  referendum  on 
all  special  laws  applicable  to  the  city ;  but  the  greatest  accel- 
eration of  this  principle  came  from  the  use  of  the  commission 
form  of  government,  in  which  there  is  a  complete  identification 
of  the  legislative  and  executive  function  in  municipal  affairs, 
thereby  breaking  down  one  of  the  most  cherished  checks  and 
balances  in  the  American  system  of  government.  The  com- 
missions were  extremely  small,  and  it  was  therefore  felt  that . 
too  much  power  was  put  in  the  hands  of  a  small  group.  To 
meet  this  criticism  the  machinery  of  direct  legislation  has  been 
quite  generally  extended  to  the  cities  which  have  adopted 
this  plan.^ 

In  the  cities  of  the  Far  West  direct  legislation  has  been  Extent 
freely  used,  perhaps  not  always  wisely,  but  with  considerable  direct  ^ 

satisfaction.    Moreover,  it  is  significant  that  in  the  optional-  legislation 

'  o  'is  used 

charter  system  adopted  by  Massachusetts  the  initiative  and 
referendum  were  provided  before  the  constitutional  amend- 
ment allowed  it  to  be  used  for  state  issues.  In  fairness,  however, 
it  may  be  said  that  as  yet  few  cities  in  Massachusetts  have 
adopted  any  of  the  optional  charters.  Of  the  hundred  or  more 
questions  which  have  been  submitted  during  the  past  years  to 
the  voters  of  American  cities,  a  large  proportion  deals  with 
proposed  changes  of  municipal  government  or  with  franchises.- 

The   same   arguments   for   and   against    the    referendum   in  Effect 
municipal  affairs  might   be  cited  as  have  been   discussed   in  tiative  and 
their  use  in  state  affairs.    There  is  this  difference:   municipal  '^fs''^"'^"™ 
electorates,  while  not  so  homogeneous  as  the  st^^te  electorates, 
have  a  certain  homogeneity  of  interest ;  that  is,  a  referendum 
applied  to  the  state  at  large  touches  both  rural  and  urban 
populations,  whose  problems  may  be  very  different.    Applied 
to  the  city,  the  referendum  affects  but  one  type  of  population, 

^This  is  the  so-called  Des  Moines  plan,  also  adopted  in   1907  by  the 
legislature  of  Ohio  (see  page  439). 

^See  W.  B.  Munro,  The  Government  of  European  Cities,  p.  330. 


4o8      STATE  AND  MUNICIPAL  GOVERNMENT 

the  urban,  which  presumably  is  more  vitally  interested  in  what 
concerns  it  alone  than  in  measures  which  are  not  so  immediately 
important  to  it. 

The  recau  The  recall  as  a  means  of  direct  control  of  government  has 
already  been  described,  and  the  arguments  for  and  against  it 
have  been  presented.^  It  should  be  remembered  that  the  recall 
has  been  used  chieliy  in  cities, — seldom  has  there  been  the  re- 
call of  a  state  officer.  In  the  past  decade  it  has  been  invoked 
successfully  about  eight  times,  but  its  use  has  been  threatened 
more  frequently.  In  the  few  cases  in  which  it  has  been  em- 
ployed, it  has  served  to  remove  municipal  officials  who  were 
not  satisfactory  to  the  voters  and  has  been  successfully  invoked 
in  states  as  diverse  as  California,  Texas,  and  Massachusetts. 

Effect  of  the      Whatever  may  be  the  theoretical  and  practical  arguments 

newer  forms  .  ,.  ,      .  ,      .  .      ,  ,,       ,  ,         .  ^     , 

of  city  gov-  agamst  direct  legislation  and  the  recall,  the  adoption  of  the 
ernment  commission  and  city-manager  forms  of  government  has  in- 
creased the  demand  for  immediate  popular  control  of  munici- 
pal officials  and  policy.  This  is  not  to  be  wondered  at,  since 
these  types  of  government  concentrate  wide  powers  in  the 
hands  of  a  few  men.  The  experience  with  the  traditional 
working  of  the  electoral  system  and  the  operation  of  parties  is 
not  such  that  the  voters  are  yet  ready  to  intrust  their  elected 
officers  entirely  and  completely  with  these  new  powers.  More- 
over, the  tendency  to  increase  the  length  of  terms  of  councils 
and  officials  makes  it  seem  desirable  to  give  the  voters  an 
opportunity  to  remedy  the  errors  of  election  which  have  been 
disclosed  in  administration.  Whether  these  arguments  are 
theoretically  valid  is  not  the  question.  The  possibility  of  using 
direct  legislation  and  the  recall  has  been  the  price  which  has 
been  paid  for  the  newer  forms  of  city  government.  It  is  to  be 
hoped  that  the  increased  responsibility  and  power  will  result 
in  the  choice  of  councils  and  officials  which  will  make  the  use 
of  these  agencies  unnecessary, 

^See  pages  126-128. 


CHAPTER  XXIII 

TYPES  OF  MUNICIPAL  ORGANIZATION— THE 
MAYOR-AND-COUNCIL  TYPE 

At  present  there  are  three  distinct  varieties  of  municipal  varieties  of 
government  in  operation  in  the  United  States.  The  oldest  and  wganizatlon 
by  far  the  most  common  is  the  mayor-and-council  type.  Orig- 
inally all  the  municipalities  in  the  United  States  were  governed 
by  some  variety  of  this  type  of  organization.  At  the  end  of 
the  nineteenth  century,  however,  the  attempt  to  eradicate  some 
of  the  most  serious  evils  in  municipal  government  led  to  the 
adoption  of  an  entirely  different  form  of  municipal  organiza- 
tion. This  was  the  commission  type  of  government,  which  was 
adopted  first  by  the  city  of  Galveston  in  1901.  Many  benefits 
resulted  from  this  change  of  form,  but  it  was  realized  that 
there  were  certain  inconsistencies  in  the  plan,  and  there  fol- 
lowed still  another  type  of  organization,  the  city-manager  type, 
which  has  been  put  into  operation  with  extraordinary  success 
in  many  of  the  small  and  middle-sized  cities  of  the  country. 

The  City  Council 

The  earliest  American  cities  adopted  the  English  type  of  History 
government.    In  this  the  council  was  the  central  organ. ^    The  counci"  ^ 
government  of  the  colonial  borough,  as  has  been  pointed  out,  Borough 

1    •  -11  1-111  rr^i  •     councils  in 

was  vested  m  a  council  chosen  directly  by  the  voters.    This  the  colonies 
council  in  turn  elected  a  certain  number  of  aldermen,  usually 
six  or  eight,  as  well  as  the  city  officials.    The  mayor,  the  alder- 
men, and  the  council  sat  as  one  body,  framed  the  ordinances, 

^See  W.  B.  Munro,  The  Government  of  American  Cities,  chap,  viii, 
with  references.  Also  J.  A.  Fairlie,  Municipal  Administration,  chap,  xvii, 
and  Goodnow  and  Bates,  Municipal  Government,  chap,  ix,  with  additional 
references. 

409 


4IO      STATE  AND  MUNICIPAL  GOVERNMENT 

spent  the  city  taxes,  and  attended  to  the  small  administrative 
duties  which  were  then  performed  by  the  city.  The  adoption 
of  the  first  state  constitutions,  and  more  particularly  of  the 
Federal  Constitution,  influenced  the  framework  of  municipal 
government.  Following  the  federal  analogy,  many  of  the  city 
councils  became  bicameral ;  aldermen  and  councilors  alike 
were  chosen  by  popular  vote ;  the  mayor  was  also  popularly 
elected  and,  like  the  president  of  the  United  States,  was  given 
the  veto  power.  As  the  cities  undertook  more  and  fresh  admin- 
istrative functions,  these  were  performed  by  committees  of 
the  council.  About  the  middle  of  the  nineteenth  century  the 
city  council  was  the  central  and  dominating  factor  in  municipal 
government.  It  was  the  city  legislature  which,  by  its  ordi- 
nance power,  determined  the  activities  of  the  city,  and  through 
its  committees  it  also  actually  performed  or  supervised  the 
increasing  administrative  functions. 
Decline  From  1850  on  the  importance  of  the  city  council  has  steadily 

counci"  ^  declined.  In  the  first  place,  the  character  and  ability  of  the 
members  of  city  councils  everywhere  has  seemed  to  deteriorate. 
The  committees  had  too  much  work  to  do  and  were  ill  fitted 
to  perform  the  work  they  attempted.  Partisanship  and  the 
spoils  system  diminished  the  little  efficiency  possessed  by  the 
councils.  Appeals  made  to  the  state  authorities  for  relief  were 
answered  by  reducing  the  administrative  powers  of  the  city 
council.  The  functions  which  it  had  attempted  to  exercise 
were  taken  away  and  given  to  the  mayor  or  to  officials  or  to 
boards  chosen  by  popular  vote,  or,  in  some  instances,  to  state- 
appointed  authorities.  The  result  was  that  during  the  last 
half  of  the  nineteenth  century  the  city  council  fell  from  its 
dominating  position  to  that  of  a  subordinate  legislative  author- 
ity whose  chief  duty  was  to  pass  local  by-laws  and  make 
appropriations.  The  reaction  against  state  interference  and 
the  demand  for  home  rule  did  not  tend  to  restore  the  city 
council  to  its  former  position.  On  the  contrary,  the  powers 
of  the  mayor  have  steadily  grown  at  the  expense  of  the  city 
council,  and  if  functions  which  were  at  one  time  exercised  by 
state-appointed  officials  were  returned  to  the  city,  they  were 
returned  to  boards  or  officials  appointed  by  the  mayor. 


THE  MAYOR  AND  COUNCIL  411 

It  is  impossible  to  generalize  about  the  organization  of  the  organiza- 
city  councils.  Not  only  does  the  practice  vary  in  the  different  city  council 
states,  but  within  the  same  state  different  types  of  organiza- 
tions are  found.  Originally  the  majority  of  the  cities,  follow- 
ing the  federal  analogy,  were  governed  by  a  bicameral  council. 
The  movement  has  been  steadily  away  from  this,  until  today 
less  than  a  third  of  the  cities  have  that  form  of  government. 
Of  the  ten  largest  cities  of  the  United  States,  only  Baltimore 
retains  the  bicameral  system. 

The  chief  advantage  claimed  for  the  bicameral  system  is  Advantages 
that  one  chamber  acts  as  a  check  upon  the  other  and  prevents  vanta'^s 
hasty  or  ill-considered  legislation.    Experience  does  not  bear  ^J.  ^^^  <='^y 

-^  o  I-  bicameral 

out  this  theoretical  claim ;  since  both  chambers  represent  prac-  system 
tically  the  same  class  of  voters  and  often  the  same  territorial 
unit  there  is  little  difference  between  them.  Quite  generally, 
too,  the  same  political  party  controls  both  chambers,  and  hence 
the  political  check  of  divergent  parties  is  ineffective.  As  a  rule 
the  only  difference  is  that  through  the  longer  terms  of  the 
upper  chamber  a  little  more  independence  of  popular  opinion 
may  be  assumed,  although  even  this  is  not  usually  found  true. 
The  bicameral  system  has  not  served  its  purpose  in  preventing 
hasty  legislation,  but  it  has  sometimes  been  effectually  used 
in  causing  delay  and  in  extorting  compromises. 

When  the  city  council  is  bicameral  the  upper  or  smaller  Description 
body  is  usually  known  as  the  board  of  aldermen  and  the  lower  council':*^ 
or  larger  body  as  the  common  council.    When  the  council  con-  (')  ^^"^^ 
sists  of  a  single  body  it  is  commonly  designated  as  the  city 
council,  although  in  some  cities  it  is  called  the  board  of  alder- 
men.   The  size  of  the  council  varies  greatly.    In  New  York  (2)  size 
and  Chicago  the  numbers  are   73  and  70,  respectively ;    the 
Boston  council  consists  of  but  9  members ;  and  San  Francisco 
has  a  council  of  18.    The  terms  for  the  members  are  always  (3)  Terms 
short.    In  some  cities  where  the  bicameral  system  exists  the 
members  of  the  upper  council  serve  for  four  years  and  the 
members  of  the  lower  for  two.    In  general,  the  council  mem- 
bers are  chosen  for  either  two  or  four  years  (the  shorter  term 
being   the    more   common),   while    in   New   England    annual 
elections  are  still  the  rule. 


412      STATE  AND  MUNICIPAL  GOVERNMENT 

(4)  The  Almost  everywhere  any  qualified  voter  may  become  a  candi- 
members       ^^^^  ^^^  ^^^  ^j^^  council.     In  a  few  exceptional  cities  there 

are  special  qualifications,  but  no  city  requires  a  special  prop- 
erty qualification.  Membership  in  the  council  is  regarded  as 
the  lowest  rung  of  the  political  ladder,  and  men  without  experi- 
ence and  often  with  little  ability  succeed  in  getting  themselves 
elected  to  this  position.  They  are  ordinarily  loyal  party  mem- 
bers, with  inconsiderable  business  interests.  An  investigation 
of  the  former  common  council  in  Boston  showed  that  the  total 
sum  which  the  members  paid  for  taxes  did  not  equal  the  annual 
cost  of  a  single  city  laborer.^  In  some  cities  men  of  such  cali- 
ber furnish  tempting  opportunities  for  corruption,  but  as  a  rule 
the  American  municipal  government  as  evidenced  by  the  city 
council  is  not  to  be  condemned  so  much  for  its  corruption  as 
for  its  stupidity  and  inefficiency. 

(5)  Salaries       Most  citics  pay  the  members  of  the  city  council.  The  salaries 

vary  from  a  few  hundred  dollars  to  the  five  thousand  a  year 
paid  in  Philadelphia.  A  great  many  cities,  however,  pay 
nothing  at  all.  It  cannot  be  said  that  payment  improves  the 
caliber  of  council  members,  and  some  councilors  are  drawing 
salaries  from  the  city  which  they  could  not  obtain  from  private 
employers.  Where  there  are  no  salaries  private  interests  often 
serve  as  an  excuse  for  neglected  city  service  and  not  infre- 
quently lead  the  councilors  to  attempt  to  secure  compensation 
by  roundabout  and  sometimes  discreditable  methods. 

(6)  Methods      Members  of  city  councils  are  elected  in  three  ways — by  wards, 
of  choice       ^^  large,  or  by  a  combination  of  both.    Election  by  wards  is 

most  common.    It  is  almost  invariably  followed  for  the  lower 

chamber  of  a  bicameral  council  and  quite  generally  used  for  a 

single  chamber.    Boston  and  San  Francisco  are  exceptions  among 

the  large  cities,  and  choose  their  councilmen  on  a  general  ticket. 

Advantages       The  chief  advantage  claimed  for  the  election  of  councilmen 

advantages   by  wards  is  that  all  parts  and  classes  in  the  city  may  be  repre- 

b*  w^afds"     sented.    It  is  felt  that  each  section  of  the  city  is  entitled  to  a 

representative  on  the  council  who  shall  be  able  to  reflect  the 

^W.  H.  Munro,  The  Government  of  American  Cities,  p.  i8q.  In  one 
New  England  city  during  one  administration  not  a  single  member  of 
either  board  paid  anything  but  the  poll  tax. 


THE  MAYOR  AND  COUNCIL       413 

local  ideas  and  sentiments.  Selection  by  wards,  moreover,  pre- 
vents all  the  council  from  coming  from  one  section  of  the  city, 
and  for  the  most  part  it  is  successful  in  producing  a  bipartisan 
body.  On  the  other  hand,  experience  has  shown  that  election 
by  wards  tends  to  subject  the  councilmen  to  the  control  of  the 
local  ward  organization.  The  phrase  "a  ward  politician"  is 
one  of  opprobrium,  and  unfortunately  ward  politicians  have  too 
frequently  found  their  way  into  the  city  councils.  Moreover, 
anything  which  is  good  for  a  single  ward  of  a  city  usually  is 
for  the  best  interests  of  the  entire  city.  Ward  election  too  fre- 
quently has  resulted  in  council  members  overlooking  the  best 
interests  of  the  whole  city  and  concentrating  their  efforts  on 
obtaining  advantages  for  their  own  ward. 

Election  on  a  general  ticket  has  many  theoretical  advan-  Election 
tages.  In  the  days  when  the  candidates  were  nominated  by  ^  ^"^^^ 
the  convention  it  was  possible  to  distribute  the  nominations 
among  the  various  wards  or  districts  of  the  city,  and  thus  to 
prevent  any  local  organization  from  foisting  on  the  city  an 
improper  candidate.  However,  with  the  modern  movement  of 
nominations  by  petition  or  primaries,  these  checks  are  not  so 
efficacious.  Election  on  the  general  ticket  is  to  be  defended 
upon  the  theory  that  the  entire  city  is  interested  in  the 
character  of  each  and  every  one  of  the  council. 

A  combination  of  the  two  systems  has  been  tried  in  some  combina- 
cities.    The   council   members   are   nominated   by  wards   and  no°mination 
chosen  on  a  general  ticket.    This  vests  the  final  choice  of  the  ^^^^g^g^joj, 
council  in  the  city  at  large  and  sometimes  forces  the  ward  at  large 
organization  to  nominate  as  candidates  men  who  would   be 
acceptable  not  simply  to  their  ward  but  to  the  city  as  a  whole. 
In  small  cities  there  are  theoretical  advantages  for  this  method, 
but  in  larger  ones  the  strength  of  the  political  parties  is  so 
great  that  the  dominant  party  in  the  city  will  almost  invariably 
choose  without  hesitation  the  candidates  nominated  by  the 
local  ward  organizations  of  the  party. 

There  is  a  great  deal  of  similarity  in  the  organization  and 
procedure  of  the  city  councils  throughout  the  United  States.^ 

iSee   Eugene   McQuillin,   Law    of   Municipal    Corporations,   Vol.   11, 
chap.  xiii. 


414      STATE  AND  MUNICIPAL  GOVERNMENT 

organiza-  In  a  few  cities  the  mayor  is  the  presiding  officer  of  the  city 
procedure  council ;  in  a  few  others  the  mayor  is  the  presiding  officer  of 
of  municipal  ^^le  upper  chamber  or  board  of  aldermen ;  in  a  very  few — New 

councils  ^^  -^ 

York,  for  example — the  president  of  the  board  of  aldermen 
is  chosen  by  popular  vote;  elsewhere  the  presiding  officer  of 
the  city  council  is  chosen  by  that  body  itself.  This  is  ordi- 
narily done  as  the  result  of  a  caucus  of  the  newly  elected 
members  and,  where  party  discipline  is  effective,  occurs  at  the 
first  meeting.  Cases  are  not  wanting,  however,  where  the 
organization  of  the  council  has  been  delayed  through  the  in- 
ability of  its  members  to  agree  upon  a  presiding  officer.  The 
usual  term  of  the  presiding  officer  is  a  single  year,  although 
in  many  instances  he  serves  for  the  life  of  the  council.  City 
councils  frame  their  rules  for  procedure,  and  it  is  customary 
to  adopt  the  rules  of  the  previous  year.  In  some  cases,  how- 
ever, provisions  for  procedure,  particularly  with  regard  to 
making  appropriations  and  granting  franchises,  are  embodied 
in  the  city  charter.  Rules  which  the  council  adopts  may  be 
and  frequently  are  suspended,  either  by  unanimous  consent  or 
by  a  two-thirds  vote  of  the  council.  Hence,  little  idea  of  the 
actual  working  of  the  council  can  be  gathered  from  a  study  of 
the  rules;  for  example,  the  requirement  that  every  order  shall 
be  given  a  reading  at  each  of  two  meetings  of  the  council  is  very 
often  suspended,  and  important  measures  are  put  through  at  a 
single  meeting  with  only  a  brief  opportunity  for  discussion. 
Council  The  committees  of  the  council  are  the  real  working  elements 

commi  jn  it.    In  large  cities  these  committees  may  number  thirty  or 

forty  and  vary  in  importance  from  the  committees  in  charge 
of  the  highways,  finance,  and  lighting  to  that  in  charge  of  the 
graves  of  soldiers.  Probably  not  more  than  half  of  them  are 
of  vital  importance  and  many,  though  charged  with  important 
matters,  have  merely  nominal  functions,  as,  for  e.xample,  the 
committees  on  statistics  or  the  sinking  funds.  Where  the  city 
council  is  a  bicameral  body  joint  committees  are  chosen  con- 
sisting of  members  from  each  body.  Along  with  these  joint 
committees,  each  chamber  may  choose  committees  of  its  own. 
Method  of  Council  committees  are  generally  appointed  by  the  prcsid- 
nig  (jflicer.    Smce  there  is  great  desire  to  serve  on  important 


THE  MAYOR  AND  COUNCIL       415 

committees,  the  presiding  officer  often  pays  his  election  obHga- 
tions  by  committee  appointments.  Thus  it  may  happen  that  im- 
portant committees  are  composed  not  of  men  specially  fitted  for 
the  work  they  are  called  upon  to  perform,  but  of  men  possess- 
ing political  influence.  Since,  moreover,  the  terms  of  the  coun- 
cilmen  are  not  long  and  the  term  of  the  presiding  officer  often 
still  shorter,  the  composition  of  the  important  committees  is 
subject  to  frequent  changes.  This  is  in  direct  contrast  to  the 
custom  in  England,  where  the  tenure  of  service  in  the  council 
is  long  and  the  service  of  committees  is  tiot  infrequently  con- 
tinuous. Thus,  in  Glasgow  it  was  found  that  seven  committee- 
men had  served  for  fifteen  years  on  their  respective  committees 
—  two  for  eighteen  years,  two  for  twenty,  three  for  twenty-one, 
and  three  for  twenty-five  years.^  This  long  service  upon  com- 
mittees tends  to  give  the  members  an  expert  knowledge  of  their 
duties  which  is  impossible  under  the  American  system.  As  a 
result,  in  England  the  recommendations  of  the  standing  com- 
mittees are  practically  always  followed,  while  in  the  United 
States  so  little  confidence  is  placed  in  these  recommendations 
that  they  are  frequently  subject  to  amendment  or  rejection. 

The  powers  of  the  city  councils  in  the  United  States  vary  so  powers  of 
much  from  state  to  state  and  even  between  cities  in  the  same  coum;ii^ 
state  that  it  is  impossible  to  make  a  comprehensive  summary. 
These  powers  are  derived,  as  has  been  seen,  from  the  charter 
granted  to  the  city,  which  charter  may  be  either  a  general  or 
a  special  charter  framed  for  the  individual  community.  The 
charter  powers  themselves  are  subject  to  frequent  amendment 
as  a  result  of  special  legislation,  either  asked  for  by  the  city 
or  superimposed  on  the  particular  city  by  the  legislature. 
Finally,  moreover,  certain  general  state  laws  apply  to  all  cities 
alike.  In  general,  however,  while  the  powers  of  the  city  coun- 
cils have  been  steadily  declining,  such  as  remain  may  perhaps 
be  classified  as  legislative  and  administrative. 

The  city  council  may  legislate  on  such  matters  dealing  with  (i)  Legisia- 
the  structure  and  form  of  the  city  government  as  are  not  cov-  (aJVenTr"f 
ered  by  the  city  charter  or  general  statutes,  but  this  field  is  not  powers 
large,  for  the  attempt  is  often  made  by  the  state  authorities 
^See  Goodnow  and  Bates,  Municipal  Government,  p.  216. 


41 6     STATE  AND  MUNICIPAL  GOVERNMENT 


(6)  Police 
power 


(c)  Finan- 
cial power 


to  cover  these  matters  thoroughly.  The  council,  however,  by 
ordinance,  may  in  certain  instances  provide  for  the  selection 
of  minor  officials  and  fix  the  compensation  both  of  these  and, 
in  many  instances,  of  the  officials  prescribed  by  the  charter. 
The  city  council  exercises  a  limited  police  power  through 
the  passage  of  ordinances.  They  may  make  rules  concerning 
traffic  and  the  establishment  of  fire  limits,  building  laws,  sani- 
tary, health,  and  plumbing  regulations,  and,  in  a  narrower  field 
dealing  with  the  morals  of  the  citizens,  such  regulations  as  those 
concerning  dance  halls,  the  curfew,  parks,  and  playgrounds.  In 
this  field,  however,  the  powers  of  the  city  council  are  being  con- 
stantly diminished.  In  the  first  place,  more  and  more  of  these 
matters  are  regulated  by  general  state  laws,  and,  second,  the 
power  to  make  them  is  being  taken  from  the  city  government 
and  given  to  administrative  boards — thus  the  regulation  of 
traffic  may  be  given  to  the  street  commissioners  or  to  the  police, 
the  sanitary  or  health  regulations  to  the  board  of  health,  and  so  on. 
The  financial  power  of  the  city  council  is  still  large.  Very 
often  the  city  council  determines  the  tax  rate,  although  it  does 
not  decide  what  property  shall  be  taxed.    Even  this  power  is 

[Appropria-   limited  by  the  power  of  the  council  to  make  appropriations. 

tions]  Theoretically,    the    city    council    makes    the    appropriations; 

actually,  however,  there  are  many  restrictions  upon  this  power. 
In  some  cities  the  appropriations  are  gathered  together  in  a 
budget,  which  is  prepared  either  by  the  mayor  or  by  some 
special  committee.  The  city  council  in  many  cases  is  limited 
in  its  consideration  of  the  budget  to  decreasing  the  appropria- 
tions asked  for.  It  may  not  insert  new  appropriations  nor 
increase  those  already  called  for.  In  some  cities,  moreover, 
the  power  to  decrease  the  budget  is  subject  to  limitations:  in 
New  York  City  changes  can  be  made  against  the  approval  of 
the  mayor  only  by  a  three-fourths  vote.  However,  in  the 
majority  of  cities  the  city  council  is  allowed  both  (o  increase 
and  to  decrease  the  mayor's  estimates  and  thus,  necessarily 
through  the  making  of  the  appropriations,  to  determine  the 
tax  rate.'    The  city  council  is  the  decisive  factor  in  borrowing 

1  See  page  541 ;  also  W.  B.  Munrn,  Principles  and  Methods  of  Municipal 
Administration,  pp.  446-453. 


THE  MAYOR  AND  COUNCIL  417 

money.  All  loans,  whether  temporary  or  permanent,  have  to  [Loans] 
be  passed  upon  by  the  council.  It  is  true  that  this  power  is 
restricted  by  state  statutes  and  that  the  city  cannot  borrow 
money  for  purposes  which  are  forbidden  or  not  specifically 
granted  to  it.  In  most  states,  moreover,  there  are  debt  limits 
beyond  which  the  city  council  may  not  go.  Furthermore,  many 
states  give  to  certain  municipal  bodies  the  right  to  issue  bonds 
for  special  purposes ;  thus  the  sewer  commissioners,  water 
boards,  and  park  commissioners  are  frequently  given  the  right 
to  issue  bonds  without  consulting  the  city  council.  In  spite  of 
these  limitations  the  power  of  the  city  council  in  finance  is 
large.  No  appropriations  can  be  made  without  its  vote,  and  as 
a  rule  no  debt  can  be  incurred  without  its  consent. 

The  city  councils  originally  had  unlimited  power  to  grant  (d)  Fran- 
franchises,  but  this  has  proved  such  a  fertile  field  of  corruption 
that  as  a  rule  it  is  now  limited,  particularly  in  the  case  of 
franchises  to  street  railroads  for  the  use  of  the  streets  and 
highways.  In  some  cities  a  popular  referendum  is  required, 
and  in  others  it  may  be  invoked  by  petition.  Moreover,  the 
power  of  the  city  government  is  limited  by  constitutional  and 
statutory  provisions  which  prevent  the  grant  of  permanent 
franchises  and  not  infrequently  specify  the  terms  of  a  fran- 
chise. In  the  field  of  the  public  utilities  which  are  actually 
operated  by  the  city,  such  as  the  water  and  sewer  systems  and, 
in  some  cases,  gas  and  electricity,  the  city  council  sometimes 
possesses  the  power  to  regulate  such  matters  by  ordinance. 
For  the  most  part,  however,  the  actual  control  of  these  services 
is  under  some  administrative  board  which  operates  more  or  less 
independently  of  the  city  council. 

The  city  councils  exercise  a  rather  wide  miscellaneous  legis-  (e)  Mis- 
lative  power.  Examples  of  this  are  found  in  the  location  of 
public  buildings  and  parks  and  the  utilization  of  the  permissive 
powers  granted  to  the  city  by  the  charter.  In  general  the 
legislative  powers  of  the  city  councils  are  decreasing  in  impor- 
tance; more  and  more  functions  are  taken  over  by  state 
authorities  or  exercised  by  administrative  boards.  Neverthe- 
less the  ordinances  of  any  city  constitute  a  bulky  and  bewilder- 
ing collection.    They  are  constantly  being  revised  and  amended 


istrative 
powers 


418      STATE  AND  MUNICIPAL  GOVERNMENT 

and  are  seldom  completely  understood  except  by  the  officers 
charged  with  their  execution. 
(2)  Admin-  Theoretically  the  city  council  ought  not  to  exercise  adminis- 
trative powers.  Consistent  with  the  federal  analogy,  which 
had  been  the  model  of  the  American  city  government,  the  ad- 
ministrative functions  should  be  exercised  by  the  city  executive. 
Nevertheless  many  city  councils  exercise  a  good  deal  of  ad- 
ministrative power  by  charter  and,  through  the  play  of  politics, 
wield  considerably  more.  Many  cities,  both  large  and  small, 
still  give  to  the  city  council  the  appointment  of  certain  officers ; 
in  more  the  nominations  of  the  mayor  require  the  confirmation 
of  the  city  council  or,  in  the  bicameral  system,  of  the  upper 
board.  Wherever  the  power  of  appointment  exists  the  city 
council  exercises  a  certain  control  over  the  administration  and 
certain  administrative  powers  as  well.  In  some  instances  the 
city  council  has  the  right  to  approve  all  contracts,  and  most 
city  councils  may  require  reports  from  the  administrative 
departments  and  may  investigate  them.  This  enumeration  of 
the  legal  administrative  powers  of  the  council  gives  an  inade- 
quate idea  of  the  position  it  actually  plays  in  municipal  admin- 
istration. Although  its  powers  in  administration  may  be 
limited,  the  influence  of  the  members  of  the  council  is  great. 
Since  all  departments  require  appropriations  and  are  dependent 
for  one  thing  or  another  upon  the  activities  of  the  council,  the 
individual  members  rather  often  acquire  great  influence  in 
the  administrative  departments  in  return  for  their  support.  The 
patronage  of  some  departments  is  put  at  the  disposal  of  groups  * 
of  councilmen,  and  the  departments  themselves  may  be  oper- 
ated not  for  the  efficiency  of  the  service  but  to  further  the 
political  fortunes  of  individual  councilors, 
mnuenceof  In  most  American  cities  the  city  council  legally  has  a  minor 
council  position,  but  practically,  through  the  operation  of  politics,  its 
influence  is  far-reaching.  This  influence,  however,  has  not 
made  for  efflciency  or  good  government.  Consequently  the 
tendency  since  the  middle  of  the  nineteenth  century  has  been 
to  decrease  the  powers  of  the  city  council  and  to  extend  those 
of  the  executive.    Only  in  the  commission  form  of  government. 


THE  MAYOR  AND  COUNCIL  419 

where  the  principle  of  separation  of  powers  has  been  ignored, 
is  there  any  tendency  toward  increasing  the  legal  position  and 
influence  of  the  council. 

The  Mayor 

The  position  occupied  by  the  mayor  in  American  municipal  Development 
administration  is  unique/  It  is  the  result  of  development  and  of  mayor 
of  the  attempt  to  remedy  the  evils  and  inefiicient  administra- 
tion under  the  councilor  system.  During  the  colonial  period  the 
mayor,  like  his  English  predecessor,  was  merely  the  presiding 
officer  of  the  council ;  he  was  chosen  by  the  council  and,  along 
with  the  aldermen,  met  with  the  council ;  he  had  no  veto  power 
and  few  if  any  administrative  powers  and  he  was  in  no  sense 
of  the  word  an  independent  administrative  officer.^  The  adop- 
tion of  the  Federal  Constitution  and  the  revision  of  the  early 
state  constitutions,  with  the  express  or  implied  separation  of 
powers,  led  to  a  change  in  the  position  of  the  mayor.  As  has 
been  shown,  the  city  charters  of  the  late  eighteenth  and  early 
nineteenth  centuries  provide  for  a  mayor  chosen  by  popular 
vote  rather  than  by  the  city  council.^  In  some  charters  the 
mayor  was  given  certain  powers  of  appointment,  subject,  how- 
ever, to  the  confirmation  of  the  aldermen,*  but  in  no  instance 
was  he  given  the  veto  power.  Thus,  until  the  middle  of  the 
nineteenth  century  the  mayor  was  rather  the  equal  of  the 
council   and  not  the   dominating   factor   in  city   government. 

iThe  best  brief  recent  account  of  the  office  of  mayor  in  the  United 
States  is  given  by  W.  B.  Munro,  The  Government  of  American  Cities 
(3d  ed.),  chap.  ix.  Other  brief  accounts  are  by  Goodnow  and  Bates, 
Municipal  Administration,  chap,  ix,  and  J.  A.  Fairlie,  Municipal  Admin- 
istration, chap.  xix.  A  detailed  study  of  the  office  of  mayor  is  contained 
in  "The  American  Municipal  Executive,"  by  R.  M.  Story,  University  of 
Illinois  Studies  in  the  Social  Sciences,  Vol.  VII,  No.  3. 

2  For  the  position  of  the  mayor  in  colonial  times  see  page  360;  a'so 
J.  A.  Fairlie,  Essays  in  Municipal  Ad-.7i:n:s'.rat:on.  pp.  68-6g,  and 
R.  M.  Story,  "The  American  Municipal  Executive,"  University  of  Illinois 
Studies  in  the  Social  Sciences,  Vol.  VIII,  No.  3,  pp.  21-23. 

3  In  Baltimore  in  1796  the  federal  analogy  was  pushed  to  the  extreme 
and  the  mayor  was  chosen  by  a  miniature  electoral  college. 

*Boston,  1796. 


420      STATE  AND  MUNICIPAL  GOVERNMENT 

Since  1850  the  council  has  lost  power.  The  reasons  for  this 
have  already  been  discussed.^  Ultimately  almost  all  of  the 
powers  which  the  council  lost  were  transferred  to  the  mayor, 
although  this  transfer  did  not  take  place  immediately.  Some 
of  the  powers  which  the  council  had  failed  to  exercise  efficiently 
were  transferred  directly  to  state  authorities;  for  example,  the 
police  administration  of  Baltimore  in  i860  and  of  Chicago  in 
1861.  In  1865  the  state  took  over  the  control  of  fire  protec- 
tion, public  health,  and  licensing  in  New  York  City  and  vested 
them  in  state  boards.  As  has  been  seen,  a  reaction  against 
state  administration  soon  set  in,  and  for  the  most  part  the 
administrative  powers  which  were  exercised  by  state  officials 
were  transferred  to  officials  or  boards  appointed  by  the  mayor. 
In  some  cases  the  powers  of  the  council  were  given  to  popularly 
elected  officials.  It  was  soon  found,  however,  that  popular 
election  was  not  a  satisfactory  method  of  choosing  administra- 
tive experts,  and  in  a  great  many  cities  the  mayor  was  the 
recipient  of  the  power  to  appoint  these  subordinate  administra- 
tors. Toward  the  end  of  the  nineteenth  century  the  power  of 
the  mayor  increased  with  great  rapidity.  Some  of  the  largest 
cities — New  York-  for  example — took  away  from  the  council 
the  power  of  confirming  the  nominations  of  the  mayor,  thus 
making  him  practically  independent  in  administration.  The 
mayor  also  gained  great  powers  in  finance.  In  many  cities  he 
was  given  the  right  to  frame  a  budget  which  could  not  be 
increased  by  the  action  of  the  council  and,  in  some  cities,  could 
not  be  decreased  except  by  an  extraordinary  majority.  Many 
municipalities  accorded  to  the  mayor  more  and  more  power 
in  awarding  contracts.  His  term  was  lengthened  and  his  salary 
increased.  Thus,  in  some  cities  the  mayor  became  the  domi- 
nant factor  in  municipal  government.  But  this  development 
was  by  no  means  uniform  throughout  the  United  States:  in 
many  cities,  and  those  not  the  smallest,  the  council  was  still 
very  powerful ;  in  others — perhaps  a  majority  of  the  middle- 
sized  ones — the  council  and  the  mayor  shared  the  responsibility 
and  functions  of  government.    Still  the  tendency  at  the  end  of 

*Sce  papcs  367-369,  370. 

2This  movement  began  in  Brooklyn  in  1882. 


THE  MAYOR  AND  COUNCIL  421 

the  nineteenth  century  was  toward  a  "strong"  mayor,  able  to 
dominate  all  features  of  city  government.  This  tendency,  how- 
ever, was  sharply  checked  by  the  development  of  the  newer 
types  of  municipal  government — the  mayor-and-commission 
and  the  city-manager  plan.  It  is  true  that  neither  of  these 
forms  has  been  adopted  by  many  of  the  cities  of  the  first  rank, 
and  in  them  the  ''strong"  mayor  is  still  the  rule.  Nevertheless, 
in  an  increasing  number  of  small  and  middle-sized  cities  either 
the  commission  or  the  city-manager  plan  has  been  adopted, 
thus  slightly  checking  the  tendency  toward  the  usual  type 
of  a  dominant  city  executive. 

In  practically  all  American  cities  the  mayor  is  chosen  by  Method  of 
direct  popular  vote.  Candidates  for  office  are  nominated  and 
elected  according  to  the  systems  described  for  the  selection  of 
other  elective  officials.^  A  few  cities,  however,  use  the  system 
of  nonpartisan  primaries  for  the  nomination  of  the  mayor,  and 
some — for  example,  Boston — require  that  the  mayor  shall  be 
nominated  by  petition.  As  a  rule  the  election  is  by  plurality 
vote ;  a  very  few  cities  require  a  majority,  and  some  have 
adopted  the  system  of  preferential  voting.- 

The  usual  term  of  office  for  the  mayor  is  two  years,  although  Term 
this  rule  is  by  no  means  uniform  either  in  a  single  state  or 
throughout  the  country.  In  New  England,  except  for  Boston, 
the  greater  number  of  cities  elect  their  mayors  annually.  Some 
of  the  largest  cities  in  the  United  States  have  adopted  a  four- 
year  term.^  A  few  municipalities  give  the  mayor  a  three-year 
term,  and  still  fewer  a  five-year  term.  The  general  tendency 
is  toward  increasing  his  term  of  office.  Practically  everywhere 
the  mayor  is  eligible  for  immediate  reelection,'*  and  wjiere  the 
terms  are  short  he  has  almost  a  prescriptive  right  to  renomina- 
tion.  In  the  larger  cities  the  executive  functions  of  the  mayor 
are  so  complicated  that  the  incumbents  are  likely  to  spend  the 
first  year  or  more  in  acquainting  themselves  with  their  duties 

iSee  Chapter  V. 
2 See  pages  101-102,  402. 

3  Baltimore,  Boston,  Chicago,  New  York,  Philadelphia,  and  St.  Louis. 
■*In  Boston  and  Philadelphia,  where  the  term  is  four  years,  the  mayor 
is  not  eligible  for  immediate  reelection. 


422      STATE  AND  MUNICIPAL  GOVERNMENT 

and  in  initiating  their  policies.  Where  the  term  is  two  years 
the  time  is  so  short  that  the  executives  have  little  opportunity 
to  show  the  voters  the  results  of  their  policy.  Consequently 
the  voters  are  generally  asked  to  give  the  mayor  another  term 
in  order  that  he  may  carry  out  and  complete  his  plans.  Thus, 
during  the  second  year  of  a  two-year  term  the  mayor  is  not  in- 
frequently busy  planning  for  his  reelection  to  the  detriment  of 
his  administration.  A  four-year  term  gives  a  mayor  the  chance 
not  only  to  initiate  but  to  bring  his  policies  to  fruition ;  it 
enables  him  to  correct  some  of  the  inevitable  mistakes  he  may 
make  during  his  first  year  and  to  come  before  the  voters  for 
reelection  with  a  record  of  accomplishment  for  good  or  evil.^ 
It  is  sometimes  held  that  a  four-year  term  is  a  severe  penalty 
for  an  unwise  selection ;  that  the  voters  may  have  been  stam- 
peded in  their  choice.  It  has  sometimes  happened  that  skill- 
fully manipulated  public  opinion  has  denied  reelection  to  an 
excellent  official  and  placed  in  office  for  a  long  term  an  inex- 
perienced and  inefficient  administrator.  This  danger  may  be 
avoided  in  various  ways :  in  New  York  State  the  mayors  of 
some  cities  may  be  removed  by  the  governor  as  the  result  of 
charges  and  a  hearing ;  in  other  states  some  of  the  various  sys- 
tems of  recall  which  have  been  described  are  in  effect.-  On  the 
whole  it  would  seem  better  to  run  the  risk  of  making  an  unfor- 
tunate choice  for  a  long  term,  subject  to  the  safeguards  already 
mentioned,  than  to  compel  every  mayor  to  stand  for  reelection 
at  the  end  of  short  terms. 

The  one  universal  qualification  is  that  the  mayor  must  be  a 
qualified  voter.  Additional  qualifications,  however,  are  imposed 
in  some  cities.    Baltimore,  San  Francisco,  and  St.  Louis  require 
Quaiifl-        a  five  years'  residence  in  the  city ;   some  cities  set  a  mini- 
mum age-limit,  and  a   few  require  a  property  qualification. 

1  In  England  the  term  of  the  mayor  is  one  year;  in  France,  four 
years;  in  Italy,  three  years;  in  (Germany  the  j^cneral  rule  is  twelve  years, 
althouRh  in  some  cases  it  is  for  life.  See  Goodnow  and  Bates,  Municipal 
Administration,  p.  232.  It  should  be  remembered  that  in  En^ikind  the 
mayor  has  little  administrative  power,  this  beini;  exercised  by  the  commit- 
tees of  the  council,  while  in  Germany  the  burgomaster  is  a  professional 
administrator  i  liiirRed  with  few  political  duties;  hence  the  comparative 
length  ol  terms  is  of  little  importance.  -See  pages  126-128. 


cations 


THE  MAYOR  AND  COUNCIL  423 

But  no  city  exacts  any  professional  qualifications  or  past  expe- 
rience in  administration  in  municipal  affairs.^ 

In  nearly  all  the  cities  in  the  United  States  except  the  very 
smallest  the  mayor  is  paid  an  annual  salary.  This  stipend  may 
be  fixed  by  charter,  but  is  usually  determined  by  city  ordi- 
nance, with  the  provision  that  the  salary  may  not  be  increased 
during  the  term  of  office  of  any  incumbent.  The  salaries  paid 
the  American  mayors  vary  from  Si 000  or  less  in  the  smaller 
cities  to  $18,000  in  Chicago."  As  compared  with  the  English 
cities  (where  the  mayors  receive  no  salaries  but  are  given  allow- 
ances for  actual  expenses)  and  the  German  cities  (where  the 
burgomasters  are  considered  to  be  well  paid),  the  American 
cities  are  generous,  but  this  generosity  neither  insures  the  same 
type  of  executive  nor  is  adequate  for  the  expenses  the  Ameri- 
can mayor  incurs.  Whatever  salary  is  paid  to  the  mayor  the 
demands  upon  him  are  usually  greater  than  his  stipend.  Some 
of  these  demands,  like  the  entertainment  of  guests  of  the  city, 
should  be  met  by  the  city.  The  majority  of  his  expenses,  how- 
ever, are  connected  with  the  political  rather  than  with  the 
legally  required  duties  of  his  office.  In  most  cities  the  mayor 
is  a  strong  organization  man  and  wins  his  election  through  the 
activity  of  the  organization.  He  consequently  finds  it  to  his 
advantage,  if  he  is  not  actually  assessed,  to  contribute  largely 
to  the  funds  of  the  party.^ 

In  order  to  win  and  maintain  popularity  the  mayor  must  be 
generous  in  his  subscriptions  to  various  organizations  and  in 
his  contributions  to  different  societies.  In  addition  he  finds  it 
advantageous  to  acquire  the  reputation  of  being  charitable  and 
ready  to  extend  aid  in  needy  cases.    These  demands  on  him 

1 W.  B.  Munro,  The  Government  of  American  Cities,  p.  215.  This  is  not 
strictly  the  case  in  the  mayor-commissioner  under  the  commission  form 
of  government  in  some  cities,  where,  by  a  provision  of  the  system, 
professional  qualities  are  sought.    See  pages  436-438. 

2  New  York  pays  $15,000;  Philadelphia,  $i2,coo;  Boston,  $10,000; 
San  Francisco,  $6000. 

■"'Where  there  is  an  attempt  to  avoid  party  organizations  the  candi- 
dates are  obliged  to  contribute  more  generously.  Thus  the  published 
returns  of  a  Boston  election  showed  that  the  two  leading  candidates  ex- 
pended about  $150,000  in  addition  to  what  was  contributed  by  their  sup- 
porters.   See  W.  B.  Munro,  The  Government  of  American  Cities,  p.  219. 


424     STATE  AND  ]\IUXICIPAL  G0\T:RN:\IENT 


Character- 
istics of 
American 
mayors 


frequently  greatly  exceed  his  salary.  It  is  not  to  be  supposed 
that  this  financial  sacrifice  on  the  part  of  most  mayors  is  a 
permanent  one.  In  a  few  cases,  perhaps,  the  mayor  may  recoup 
himself  in  corrupt  ways,  but  more  often  he  seeks  compensation 
through  the  prominence  and  advertising  which  his  position 
gives  him.  As  chief  executive  of  a  city  he  becomes  well  known, 
and  if  he  is  a  lawyer  he  attracts  considerable  practice.  In  other 
fields  as  well  his  prominence  is  an  asset.  His  term  of  service 
in  a  large  number  of  instances  results  in  direct  financial 
profit,  not  because  of  corruption  or  absolutely  illegal  acts  but 
from  a  dubious  blending  of  his  private  business  with  his 
official  functions. 

American  mayors  are  rarely  professional  administrators ;  in 
this  respect  they  are  in  direct  contrast  to  the  German  burgo- 
master and  to  the  city  manager  in  the  newest  form  of  American 
municipal  government.  Mayors  in  the  United  States  are  seldom 
men  of  large  business  experience ;  in  this  respect  they  are  in 
sharp  contrast  to  the  English  mayors.  Nor,  like  the  English 
mayors,  are  they  men  of  large  means.  In  fact,  great  wealth 
and  connections  with  big  business  are  considered  a  handicap 
for  the  candidacy  of  any  mayor.  American  mayors  are,  pri- 
marily, politicians ;  ordinarily,  faithful  members  of  the  party 
organization.  They  have  seldom  held  any  other  political  of- 
fice; indeed,  previous  administrative  service  in  either  state  or 
municipal  affairs  is,  like  wealth,  a  handicap.  Although  there 
are  notable  exceptions  to  this,  yet  experience  has  shown  that 
previous  service  generally  gives  a  man  a  "record."  While  this 
record  may  be  good  he  will  have  been  obliged  to  offend  cer- 
tain influential  politicians  who  may  oppose  and  thwart  his 
ambition.  The  American  mayoralty  is  not  a  stepping-stone 
to  higher  political  office.  There  are,  it  is  true,  many  excep- 
tions to  this  statement,  but  as  a  rule  the  office  of  mayor  is 
generally  the  first  and  last  official  position  which  the  incumbent 
occupies. 

In  spite  of  the  theory  of  the  separation  of  departments  the 
mayors  of  American  cities  possess  certain  legislative  powers. 
The  first  of  these — the  power  to  recommend  legislation — is 
generally  exercised  in  two  ways.    On  taking  office  the  mayor 


THE  MAYOR  AND  COUNCIL  425 

in  his  inaugural  address  frequently  outlines  the  program  he  Legislative 

,     ,      .  ,  ,,  If  •  i  powers  of 

expects  and  desires  to  have  put  through,    bince,  in  most  cases,  the  mayor: 
the  mayor  and  the  city  council  are  of  the  same  political  party  Jj^'om^mend" 
and  products  of  the  same  political  organization,  the  mayor's  action 
inaugural  may  come  to  be  the  program  of  the  party  and  thus 
is  often  favorably  acted  upon  by  his  party  majority  in  the 
council.    A  second  way  in  v/hich  the  mayor  recommends  action 
is  by  means  of  special  messages  to  the  council.    These  messages 
may  be  delivered  in  the  form  of  a  personal  address  or  as  a 
written  communication.    They  are  effective  in  proportion  to 
the  mayor's  influence  upon  the  council.    This,  in  turn,  depends 
upon  his  standing  in  the  organization  and  the  extent  to  which 
the  leader  controls  the  councilmen.     Where  the  mayor  and 
council  are  of  opposite  parties  neither  the  mayor's  inaugural 
nor  his  special  messages  receive  much  consideration. 

The  strongest  weapon  which  the  mayor  has  is  the  right  to  (2)  veto 
veto  the  action  of  the  council.  Originally  this  did  not  belong  ^"^^"^ 
to  mayors  in  the  United  States  nor  is  it  possessed  by  any 
municipal  executive  in  England  or  on  the  Continent.  The  veto 
power  is  a  distinctly  American  institution.  According  to  prac- 
tically all  city  charters  no  ordinance  or  action  of  the  council 
becomes  binding  unless  signed  by  the  mayor.  The  mayor's 
veto  consists  in  returning  to  the  body  in  which  it  originated 
any  ordinance  or  resolution  without  his  approval.  If  the 
majority  of  the  council  repasses  the  ordinance  or  order  in  spite 
of  the  mayor's  objection,  it  becomes  valid  without  his  signature. 
Most  city  charters  require  an  extraordinary  majority  to  over- 
ride the  mayor's  veto — in  general,  two  thirds;  but  San  Fran- 
cisco require  seven  ninths,  and  in  Boston  the  disapproval  of 
the  mayor  is  final. 

The  executive  veto  was  adopted  in  the  Federal  Constitution  [Merits  of 

,.,  ..  ^,  .  ,,.  J.  ,,    the  mayor's 

and  in  the  constitutions  of  the  various  states  in  order  to  protect  ^eto] 
the  executive  from  encroachment  by  the  legislature.  As  such 
it  has  been  effective.  On  the  whole,  it  has  been  used  sparingly 
and  wisely  in  state  and  national  affairs  and  is  almost  uni- 
versally regarded  as  a  safeguard  against  extravagant  or  unwise 
action  by  legislative  bodies.  Following  the  federal  analogy,  it 
was  carried  over  to  municipal  government  in  the  nineteenth 


42  6      STATE  AND  MUNICIPAL  G0VERN:\IENT 

century,  where  it  cannot  be  defended  on  the  same  grounds.^ 
The  legislative  functions  of  the  city  government  are  not  com- 
plete and  final  in  themselves ;  above  and  beyond  the  city  is 
the  state  legislature,  which  by  law  may  enact  measures  for  the 
city  or  repeal  action  taken  by  it.  The  city  executive,  more- 
over, in  the  last  sixty  years  has  not  needed  protection  against 
the  city  council,  and  in  fact  the  mayor  has  dominated  the 
legislative  branch.  Whether  this  be  for  the  advantage  or  dis- 
advantage of  good  government  the  veto  has  too  often  been 
used  as  an  instrument  of  political  juggling.  The  council  has 
evaded  responsibility,  trusting  to  the  mayor  to  veto  its  act,  and 
the  mayor,  by  refusing  to  exercise  this  veto  power,  has  tried 
to  shift  the  responsibility  to  the  council.  Moreover,  instances 
are  not  wanting  in  which  the  mayor  has  compelled  the  council 
to  confirm  bad  appointments  through  the  threat  of  vetoing  a 
measure  in  which  it  was  vitally  interested.  Yet  in  spite  of  these 
criticisms  the  mayor's  veto  has  often  made  for  economy  and 
prevented  foolish  and  harmful  legislation.  It  is  true  that  under 
the  commission  form  of  government  the  veto  has  been  aban- 
doned, but  government  by  a  commission,  as  will  be  seen,  pre- 
sents very  different  problems  from  the  mayor-and-council  type. 
The  commission  is  both  the  executive  and  the  legislature.  As 
long  as  the  system  of  the  separation  of  the  executive  and  legis- 
lative departments  remains,  even  in  its  faulty  present  form, 
there  seems  to  be  a  legitimate  place  for  the  veto  of  the  mayor. 
(3)  Finan-  In  many  cities,  although  perhaps  not  in  most,  the  mayor 
initiates  appropriations.  Originally  the  finance  committee  of 
the  city  council,  as  in  the  English  boroughs,  prepared  the  bud- 
get. This  proved  unfortunate  in  American  cities,  for  the  coun- 
cil members  attempted  to  pad  the  budget  for  the  benefit  of 
their  wards  and  constituencies  and  had  little  regard  for  the 
wider  interests  of  the  city  or  for  economy  and  sound  finance. 
In  many  American  cities  today  the  mayor  is  given  the  sole 
authority  to  prepare  the  budget ;  that  is,  to  receive  the  esti- 
mates of  the  various  departments  and  to  recommend  the 
amount  which  the  city  council  shall  appropriate  to  each.    In  a 

^  For  criticism  of  the  mayor's  veto  power  see  W.  B.  Munro,  The  Gov- 
ernment of  American  Cities,  pp.  225-226. 


cial  powers 


THE  MAYOR  AND  COUNCIL  427 

large  number  of  these  cities  the  council  is  prohibited  from 
increasing  the  suggested  amounts  or  from  inserting  new  appro- 
priations, but  it  may  reduce  the  amounts  recommended.^  In  The  Boston 
Boston  the  mayor  has  the  undivided  responsibility  of  preparing  ^^^° 
and  submitting  the  budget.  The  council  may  reduce  or  omit 
any  item,  but  may  not  increase  any  suggested  appropriation 
nor  insert  new  ones.     In  New  York  the  preparation  of  the  The  New 

,.,,..  ,  .  ^     York  plan 

budget  is  vested  in  a  board  of  estimate  and  apportionment, 
which  consists  of  the  mayor,  the  comptroller,  the  president  of 
the  board  of  aldermen,  and  the  five  borough  presidents.  The 
board  of  aldermen,  to  whom  the  budget  is  then  submitted,  can 
make  no  changes  except  to  decrease  the  appropriations  called 
for,  and  even  these  changes  are  subject  to  the  veto  of  the 
mayor,  which  can  be  overridden  only  by  a  three  fourths'  vote.- 

The  appointing  power  is  one  of  the  most  important  features  Administra- 
of  authority  of  the  mayor,  and  in  many  cities  the  most  impor-  (j^A^p^^fnt- 
tant.  In  no  American  city  does  the  mayor's  appointing  power  i°s  power 
extend  to  all  the  city  officials,  for  some  of  these  are  still  elected 
by  the  city  government  or  by  the  voters  directly.  Particularly 
is  this  true  with  regard  to  the  officers  intrusted  with  the  admin- 
istration of  finance,  like  the  city  treasurer  or  the  comptroller. 
The  great  majority  of  administrative  officials,  however,  obtain 
their  office  as  the  result  of  nomination  or  appointment  by  the 
mayor.  Until  the  last  decades  of  the  nineteenth  century  con- 
firmation by  the  city  council,  or  one  body  of  the  city  council, 
was  necessary  in  order  to  consummate  the  appointment  of  the 
mayor.  This  was  only  another  example  of  the  slavish  following 
of  the  federal  analogy.  Beginning  with  Brooklyn  in  1882,  the 
experiment  was  tried  of  giving  the  mayor  the  absolute  power  of 
appointment.  This  has  rapidly  spread  and  has  become  the  custom 
in  many,  although  not  in  the  majority,  of  the  American  cities. 

The  theory  of  requiring  aldermanic  confirmation  rested  not  Merits  of 
simply  on  the  desire  to  copy  the  federal  system,  but  on  a  confirSon 
genuine  fear  that  the  municipal  executive  could  not  be  trusted 
to  make  appointments  unchecked  by  the  representatives  of  the 
voters.    It  was  felt  that  aldermanic  confirmation  would  prevent 

iSee  page  541.    For  fuller  treatment  see  also  W.  B.  INiunro,  Principles 
and  Methods  of  Municipal  Administration,  pp.  445-453-     ^See  page  546. 


42  8      STATE  AND  MUNICIPAL  GOVERNMENT 


The  Boston 
plan 


Removals 
from  office 


partisan  or  bad  appointments.  Such,  however,  has  not  been 
the  case.  Aldermanic  confirmation  has  too  often  been  used  as 
an  excuse  to  avoid  responsibihty.  The  mayor  has  claimed  that 
he  "appointed  as  good  men  as  the  aldermen  would  confirm,  and 
the  aldermen  that  they  were  obliged  to  confirm  the  mayor's 
appointees.  Moreover,  the  system  has  led  to  trading  and  log- 
rolling by  which  the  mayor  buys  the  support  of  the  aldermen 
with  the  patronage  at  his  disposal. 

The  amendments  to  the  Boston  Charter  in  1909  gave  to 
the  state  civil-service  commission  the  power  of  passing  upon 
the  mayor's  appointments.  No  aldermanic  confirmation  was  re- 
quired, but  the  mayor  was  obliged  to  certify  to  the  commission 
that  his  nominee  was  a  ''recognized  expert  in  the  work  which 
will  devolve  upon  him"  or  "a  person  specially  fitted  by  educa- 
tion, training,  or  experience  to  perform  the  duties"  of  the 
office.  On  receiving  such  information  the  commission  investi- 
gates the  mayor's  appointee,  and  unless  it  is  satisfied  that  the 
appointee  fulfills  the  conditions  the  mayor's  appointment  lapses 
on  the  expiration  of  thirty  days  and  a  new  nomination  must  be 
made.  This  system  is  obviously  an  invasion  of  the  principle  of 
municipal  home  rule,  for  it  gives  to  a  state-appointed  body, 
which  is  not  under  the  control  of  the  municipality,  the  power 
to  reject  the  nominations  of  the  municipal  executive.  Never- 
theless, in  its  actual  working  the  system  has  much  to  commend 
it.  It  must  be  admitted  that  a  great  deal  depends  upon  the 
liberality  with  which  the  commission  interprets  the  words 
"recognized  expert."  As  it  has  been  applied  in  the  case  of 
Boston,  it  has  restricted  the  freedom  only  of  the  spoilsmen, 
and  a  mayor  at  all  interested  in  appointing  even  moderately 
efficient  administrators  has  met  with  no  difficulty.  On  the 
whole  the  Boston  plan  has  much  to  commend  it.^ 

Where  officials  are  appointed  by  the  mayor  without  the 
confirmation  of  the  city  council  or  board  of  aldermen,  the 
mayor  as  a  rule  may  remove  his  appointees  without  assigning 
cause.  In  some  cities,  however,  after  an  officer  appointed 
by  the  mayor  has  held  office  for  a  certain  length  of  time,  he 

'For  a  fiillcT  discussion  of  Iho  Boston  plan  see  W.  B.  Munro,  The 
Government  <it  Ameriran  Cities,  pp.  230-233,  435-436. 


THE  MAYOR  AND  COUNCIL  429 

may  not  be  removed  except  as  the  result  of  a  hearing.  But 
where  the  mayor's  appointment  is  subject  to  coniirmation  by  a 
board  of  aldermen,  the  officer  may  not  be  removed  without 
the  consent  of  the  concurring  body.  Accordingly  the  mayor 
finds  himself  in  such  cases  merely  the  nominal  director  of  the 
administration  for  which  he  is  held  responsible. 

The  American  mayor  has  a  great  many  miscellaneous  powers  Misceiiane- 
and  functions  which  vary  with  the  charters  of  the  different  ouh^mayor 
cities.  As  a  rule  he  is  intrusted  with  supervision  over  all  the 
departments,  although  where  he  is  not  given  the  power  to 
appoint  and  remove  the  department  officials  this  power  is  of 
little  avail.  In  some  cities  he  is  given  the  right  to  receive 
reports  and  inspect  the  accounts  of  the  city  officials,  but  with- 
out the  power  to  compel  certain  actions  this  right  amounts  to 
very  little.  He  may  call  out  the  militia  in  some  cities  and 
occasionally  may  pardon  offenders  sentenced  at  the  municipal 
court.  In  many  cities  he  is  a  magistrate,  and  sometimes  he 
actually  exercises  these  judicial  functions.  He  often  represents 
the  city  at  legislative  hearings  and  in  some  states  may  express 
his  approval  or  disapproval  of  legislation  affecting  the  city. 

Today,  in  cities  using  the  mayor-and-council  type  of  govern-  present 
ment,  the  mayor  is  the  dominating  factor  in  the  situation.  His  \l^^  '°°  ° 
powers  have  steadily  increased,  his  duties  have  multiplied,  and 
his  responsibility  has  become  very  direct.  Whatever  failures 
and  inefficiencies  are  found  in  municipal  governments  of  the 
mayor-and-council  plan  they  are  not  due  to  lack  of  power  on 
the  part  of  the  mayor.  So  much  authority  has  been  given  the 
mayor  in  some  of  our  largest  cities  that  he  may,  as  did  ex- 
Mayor  Mitchel  of  New  York,  institute  and  carry  through  exten- 
sive municipal  reforms  and  establish  an  enviable  record  for 
efficient  municipal  administration.  In  so  doing,  however,  a 
mayor  may  be  forced  to  override  and  ignore  the  popular  and 
democratic  element  in  the  city  government.  He  thus  lays  him- 
self open  to  the  charge  of  establishing  a  one-man  power.  This 
may  bring  about  such  a  change  of  sentiment  that  the  excellences 
of  his  administration — based  as  it  is  on  the  executive  power 
— may  be  reversed  and  discarded  where  an  admittedly  less 
efficient  but  more  popular  administration  would  be  continued. 


mayor 


CHAPTER  XXIV 

TYPES  OF  MUNICIPAL  ORGAXIZATIOX— CITY 
GOVERNMENT  BY  A  COMMISSION 

Principles  of  City  government  by  a  commission  rests  upon  the  theory  of 
sfon'f^'of  the  fusion  of  the  legislative  and  administrative  functions.  In 
government  ^.j^g  gygtem  of  government  just  described — that  of  the  mayor 
and  council — the  principle  of  the  separation  of  the  powers  of 
government  was  the  underlying  feature.  The  influence  of  the 
Federal  Constitution  and  the  constitutions  of  the  various  states 
in  framing  the  organs  of  government  and  in  the  distribution  of 
their  powers  was  everywhere  seen.  City  government  by  a  com- 
mission abandons  this  theory  and  analogy  and  rests  upon  the 
principle  that  in  municipal  administration  there  is  no  need  for 
a  division  of  power  or  for  the  checks  and  balances  which  are 
so  cunningly  devised  for  the  national  and  state  governments. 
It  starts  with  the  assumption  that  the  greater  part  of  the  func- 
tions of  municipal  government  deals  with  problems  of  execution 
and  administration  and  not  with  legislation.  Briefly,  commis- 
sion government  abolishes  the  legislative  organs  of  the  city  and 
vests  all  the  legislative  functions  in  an  administrative  council 
or  group  of  heads  of  administrative  departments.  Although  it 
is  a  radical  departure  from  the  systems  of  national  and  state 
government,  it  is  an  adaptation  of  the  principles  and  methods 
of  county  government. 

The  application  of  commission  government  to  cities  was  the 
result  of  a  disaster.'    In  September,  1900,  a  large  portion  of 

iThc  material  on  commission  Rovcrnmcnt  is  copious.  Detailed  refer- 
ences to  this  may  be  found  in  W.  B.  Munro"s  "Bibliography  of  Municipal 
Government."  There  is  an  excellent  discussion  of  this  system  in  "The 
Government  of  American  Cities"  (.^d  ed.),  chap,  xii,  by  the  same  author, 
which  Rives  some  of  the  more  recent  and  important  references.  Esjwcial 
attention  should  be  called  to  Bulletin  No.  12,  "Commission  Government 
in  .American  Cities,"  in  the  Bulletins  for  the  Massachusetts  Constitutional 

430 


GOVERNMENT  BY  COMMISSION  431 

the  city  of  Galveston,  Texas,  was  destroyed  by  a  tidal  wave,  origin  of 

commissii 
government 


Under  the  old  form  of  government  by  mayor  and  council  Gal    ^°""^>^^'°" 


veston  had  not  prospered.  The  debts  had  rapidly  increased, 
and  it  was  not  uncommon  to  borrow  money  for  current  ex- 
penses. The  tax  rate  was  high,  and  the  citizens  got  little  return 
for  their  taxes.  It  was  found  almost  impossible  to  borrow 
money  to  rehabilitate  the  city  except  on  rates  of  high  interest, 
and  the  governor  of  the  state  refused  to  allow  public  money  to 
be  advanced  to  a  municipality  which  showed  such  incapacity 
in  the  management  of  its  affairs.  In  this  crisis  a  group  of 
citizens  petitioned  the  legislature  to  put  the  city  into  what 
amounted  to  a  receivership.  Consequently,  on  April  19,  1901, 
the  state  legislature  passed  an  act  abolishing  all  the  existing 
organs  of  the  city  government  and  vesting  their  functions  in  a 
commission  of  five  men,  three  of  whom  should  be  appointed  by 
the  governor  and  two  elected  by  the  citizens.  It  was  held  by 
the  Texas  courts  that  this  violated  the  constitutional  provisions 
of  self-government,  and  the  legislature  in  1903  amended  the  act 
by  providing  that  all  five  commissioners  should  be  elected  by 
the  voters.    Although  the  Galveston  plan  was  adopted  to  meet  spread  of 

.    .  ,  .  the  commis- 

an  emergency,  its  results  were  so  satisfactory  that  it  was  sion  idea 
adopted  by  the  city  of  Houston  in  1905.  During  the  next  two 
years  no  other  city  followed  this  example,  but  in  1907  the 
legislature  of  Iowa  passed  an  act  allowing  any  city  of  more 
than  25,000  to  adopt  the  commission  form  of  government.^ 
The  city  of  Des  Moines  made  use  of  this  plan  of  government 
in  1908,  and  from  that  time  its  use  has  spread  until  about  four 
hundred  cities  are  operating  under  this  system.    Comparatively 

Convention,  Vol.  I,  pp.  451-458.  This  gives  digests  of  certain  typical 
charters,  lists  of  state  acts  providing  for  commission  government,  and 
lists  of  the  commission-governed  cities.  A  standard  work  is  E.  S.  Brad- 
ford's "Commission  Government  in  American  Cities."  The  operation  of 
the  commission  form  of  government  during  its  first  ten  years  is  dis- 
cussed in  the  National  Municipal  Rcvieiv,  Vol.  I,  pp.  372-377.  562-568, 
by  E.  S.  Bradford  and  W.  B.  Munro.  The  United  States  Census  Bureau 
in  1Q16  published  the  "Comparative  Financial  Statistics  of  Cities  under 
Council  and  Commission  Government." 

ilowa,  Laws  of  1907,  chap.  48,  with  amendments;  Laws  of  1909, 
chap.  64;  Laws  of  1913,  chap.  102.  A  digest  of  this  law  is  in  the  Bulletins 
for  the   Massachusetts  Constitutional   Convention,  Vol.   I,  pp.   475-476. 


432      STATE  AND  MUNICIPAL  GOVERNMENT 

few  cities  with  a  population  above  200,000  have  tried  the  com- 
mission form/  but  about  fourteen  cities  having  a  population 
of  from  100,000  to  200,000  have  adopted  it.  These  cities  are 
found  in  all  sections  of  the  country,  though  more  are  in  the 
South  than  in  any  other  single  section.  As  Professor  Munro 
has  pointed  out,"  the  real  problems  of  municipal  government 
develop  generally  in  cities  of  over  100,000.  Less  than  twenty 
such  cities  have  put  the  commission  plan  into  effect.  Accord- 
ingly even  yet  it  is  too  early  to  determine  whether  the  scheme 
will  satisfy  those  municipalities  in  which  the  problems  of  gov- 
ernment are  most  acute.  The  system  is  most  popular  in  cities 
having  a  population  of  less  than  30,000,  and  there  are  nearly 
three  hundred  such  cities  distributed  among  thirty-nine^  states; 
in  all,  forty-three  states  have  cities  under  this  type  of  govern- 
ment.^ Although  the  commission  plan  of  government  has  been 
rejected  by  a  number  of  medium-sized  cities,'^  only  a  few  cities 
have  returned  to  the  former  system  of  mayor  and  council, 
after  they  had  once  adopted  the  commission  form. 
Methods  by       The  most  common  way  in  which  cities  may  obtain  commis- 

which  cities     .  .      ,  ,    ,  i  •   i        n 

may  adopt  sion  government  is  by  general  law,  which  allows  any  city 
si'cHi'^t^p'e  of  within  the  state,  with  the  approval  of  the  citizens,  to  adopt  the 
government  commission  form  of  government.  As  a  rule,  however,  general 
laws  exempt  the  great  metropolitan  centers  and  sometimes  the 
very  small  communities.  In  four  states''  the  commission  form 
is  made  obligatory  for  all  cities  of  certain  classes,  and  in 
Pennsylvania  it  is  required  for  all  cities  except  Philadelphia, 
Pittsburgh,  and  Scranton.    Five  states'  have  adopted  optional 

iNew  Orleans,  1912;  Jersey  City,  1913;  Portland,  Oregon,  1913; 
St.  Paul,  1914;  Buffalo,  1916. 

-"Ten  Years  of  Commission  Government,"  National  Municipal  Re- 
view, Vol.  I,  pp.  562-568. 

3  For  tables  of  cities  see  Bulletins  for  the  Massachusetts  Constitutional 
Convention,  Vol.  I,  pp.  481  et  seq.,  also  current  numbers  of  the  National 
Municipal  RrviCiC  and  the  .American  Year  Book. 

*The  folio  wing  states  have  no  cities  governed  by  commission:  Dela- 
ware, Indiana,  New   Hamiishire,   Rhode   Island,  and  Vermont. 

•'"' Bridgeport,  Cambridge,  Minneapolis,  and  Savannah. 

"Alabama,  Missouri,  Pennsylvania,  and  Utah. 

''  Massachusetts,  New  York,  North  Carolina,  Ohio,  and  Virginia. 
Sec  page  382. 


GOVERNMENT  BY  COMMISSION  433 

charter  laws  under  which  any  city,  with  certain  exceptions, 
may  adopt  one  of  the  optional  charters  provided  by  the  legis- 
lature. Among  these  alternative  plans  is  the  commission  type 
of  city  government.  The  ordinary  method  by  which  the  per- 
missive general  laws  or  optional  laws  are  invoked  is  through  a 
petition  signed  by  10  to  40  per  cent  of  the  voters  (the  most 
usual  percentage  is  25),  requesting  that  the  act  be  submitted 
at  a  general  or  special  election.  If  it  is  ratified  by  the  majority 
of  voters  the  new  system  goes  into  effect.  A  third  method  by 
which  commission  government  is  offered  is  afforded  under  the 
system  of  home-rule  charters.  Twelve  states  have  home-rule- 
charter  laws  which  have  been  invoked  for  framing  charters  for 
commission  government.  Of  the  more  important  cities  which 
have  adopted  charters  by  this  means  may  be  mentioned  Port- 
land, Oregon,  and  Spokane,  Washington.  A  fourth  method 
by  which  commission  government  is  applied  to  cities  is  through 
special  charters  granted  by  the  legislature.  This  way  is  fol- 
lowed where  legislatures  have  failed  to  adopt  the  home-rule 
system,  the  optional-charter  system,  or  general  laws  for  com- 
mission government,  and  has  been  invoked  in  some  states  where 
the  optional-charter  system  already  exists.  Buffalo  and  Lowell 
may  be  mentioned  as  cities  which  have  hy  this  method  become 
commission-governed. 

The  central  feature  of  city  government  by  a  commission  is  Description 
obviously  the  commission  itself.    In  this  is  concentrated  all  machinery 
the  functions  previously  exercised  by  the  mayor,  city  council  efnmTnt  by 
and  many  of  the  administrative  departments.    The  size  of  this  commission 
commission  varies  from  three  members  to  seven.    Probably  the  commission 
average  size,  taking  all  the  cities  throughout  the  country  into  0° 
consideration,  would  be  five.    The  size  of  the  commission  is  of  s^°°"^ 
vital  importance.    It  should  not  be  so  large  that  it  would  repro- 
duce some  of  the  evils  of  the  council  system;   on  the  other 
hand,  it  should  be  large  enough  so  that  the  commissioners 
should  not  be  overworked  and  that  each  commissioner  might 
be  intrusted  with  the  supervision  of  a  single,  homogeneous 
administrative  department,  although  these  departments  may 
properly  contain  correlated  bureaus.    For  any  but  the  smallest 
cities  five  is  about  the  lowest  number  of  departments  into  which 


(a)  Number 
commis- 


434     STATE  AND  MUNICIPAL  GOVERNIMENT 


(b)  Method 
of  election 


the  functions  of  the  city  may  be  consolidated.  On  the  other 
hand,  it  may  be  possible  to  consolidate  the  functions  of  even 
the  large  cities  into  not  more  than  six  or  seven.^ 

As  a  general  rule  the  commissioners  are  elected  at  large  on  a 
nonpartisan  ballot.  Nomination  is  obtained  either  by  petition 
or  by  primaries.  The  former  has  sometimes  resulted  in  placing 
many  names  upon  the  ballot  and  thus  may  bring  about  the 
election  of  a  commissioner  by  a  minority  of  the  voters.  Nomi- 
nation by  primaries,  serving  as  it  does  in  place  of  a  preliminary 
election,  will  eliminate  all  but  the  two  highest  candidates  and 
insure  election  by  a  majority  of  the  voters.  The  use  of  the  pri- 
mary, however,  involves  considerable  expense  and  expenditure 
of  energy.  Consequently  a  few  cities  have  adopted  the  system 
of  preferential  voting,  and  a  still  smaller  number  have  adopted 
proportional  representation.  The  working  of  these  modes  of 
voting  has  already  been  described.-  It  should,  however,  be 
noticed  here  that,  unless  there  are  three  to  five  vacancies  to  be 
filled,  a  system  of  proportional  representation  has  little  advan- 
tage over  the  ordinary  methods.  The  same  criticism  does  not 
apply  to  the  use  of  preferential  voting  for  filling  a  few  vacancies. 

The  term  of  commissioners  varies  from  one  to  six  years.  In 
cities  of  more  than  30,000  inhabitants  the  most  common  term 
is  either  two  or  four  years,  only  one  city  having  a  term  of 
five  years  and  two  cities  terms  of  six  years.^  In  some  states* 
the  charter  laws  provide  for  the  partial  renewal  of  the  commis- 
sion at  each  election,  thus  making  the  commission  a  continuous 
body.  Under  the  Iowa  law,  however,  and  the  so-called  Des 
Moines  plan  the  entire  commission  is  renewed  at  each  election. 
(d)  Salaries  The  Salaries  paid  to  the  commissioners  in  cities  of  more  than 
30,000  are  everywhere  higher  than  those  paid  to  aldermen  or 
councilors.  This  is  as  it  should  be,  since  a  commissioner  is 
expected  to  give  a  large  part  of  his  time,  if  not  all,  to  the 
administration  of  his  department.  Salaries  vary  from  $6000 
paid  to  the  commissioners  of  New  Orleans  and  $7000  in  Buffalo 


(c)  Term 
of  commis- 
sioners 


'See  arJministralion  departments,  p.  457. 

'See  pa^es  101-104. 

^The  six-year  term  is  provided  by  general  law  for  all  cities  in  Wisconsin. 

^Alabama,  Montana.  North  Dakota,  and  South  Dakota. 


GOVERNMENT  BY  COMMISSION  435 

and  Birmingham,  down  to  S1800  in  Galveston,  $1200  in  Boise, 
and  Si 000  in  Waco.  Perhaps  the  most  common  amount  would 
be  between  $1800  and  $2500. 

The  grouping  of  the  administrative  departments  under  the  (2)  Admin- 

"  '  istrative 

supervision  of  the  commission  is  the  second  fundamental  fea-  departments 
ture  of  this  type  of  government.  The  numbers  of  these  de- 
partments vary  with  the  number  of  commissioners,  and  their 
designations  also  are  different.  A  typical  arrangement  would 
probably  be  as  follows:  (i)  department  of  public  affairs 
(mayor,  miscellaneous  functions)  ;  (2)  department  of  accounts 
and  finance;  (3)  department  of  public  health  and  safety 
(health,  police,  and  fire  protection)  ;  (4)  department  of  streets 
and  public  improvements;  (5)  department  of  public  property 
(municipal  water  and  lighting  plants,  public  buildings,  etc.). 
There  are  several  methods  for  determining  how  the  commis- 
sioners shall  be  assigned  to  these  departments.  In  most  of  the 
cities  the  Des  Moines  plan  is  followed,  by  which  the  entire 
commission  is  elected  without  specifying  the  department  which 
each  commissioner  is  to  administer,  and  the  departments  are 
assigned  by  a  vote  of  the  commission.  In  other  cities — and  these 
include  cities  adopting  the  charters  provided  in  Arkansas,  Lou- 
isiana, and  Massachusetts — the  commissioners  are  nominated 
and  elected  for  specific  departments.  A  third  method  is  ex- 
emplified by  the  general  charter  act  of  South  Carolina,  which 
provides  that  the  mayor  shall  assign  the  commissioners  to  the 
various  departments.  There  is,  however,  a  provision  which 
allows  the  council  to  make  rearrangements  when  necessary.  In 
Portland  and  St.  Paul  the  mayor  may  make  the  assignment 
and  in  the  former  may  make  reassignments  "whenever  it  ap- 
pears that  the  public  service  will  be  benefited  thereby."^  Very 
grave  objections  may  be  raised  to  the  election  of  a  commis- 
sioner for  a  particular  department.  The  tendency  will  be  to 
nominate  and  compel  the  election  of  a  person  who  is  supposed 
to  possess  some  expert  knowledge  of  the  functions  of  the 
department  for  which  he  is  a  candidate.  As  will  be  seen, 
this  is  contrary  to  the  idea  of  a  commission-government.  The 
commissioners  are  not  supposed  to  be  experts  to  run  their 
iR.  M.  Story,  The  American  Municipal  Executive,  p.   192   note. 


436      STATE  AND  MUNICIPAL  GOVERNMENT 


(3)  The 
mayor 


[Position 
and  influ- 
ence of  the 
mayor] 


departments,  but  they  are  expected  to  be  intelligent  executives 
who  are  able  to  see  that  their  departments  run.  It  is  more  im- 
portant to  obtain  a  good  executive  who  may  be  ignorant  of  the 
technicalities  of  his  department  than  it  is  to  elect  a  presumed 
expert  who  lacks  executive  or  administrative  ability.  On  the 
whole,  the  apportionment  of  the  departments  by  the  commis- 
sion itself  has  worked  fairly  well,  although  this  method  may 
possibly  develop  logrolling.  The  third  means — that  of  appoint- 
ment by  the  mayor — is  in  vogue  in  so  few  cities  that  it  is 
impossible  to  generalize  upon  it.  It  would  seem,  however,  to 
be  a  reversal  to  the  mayoralty  type,  which  the  commission 
form  is  attempting  to  avoid. 

In  all  commission-governed  cities  there  is  a  presiding  officer 
known  as  the  mayor.  In  most  cities  he  is  elected  for  this 
particular  office  and  is  so  designated  on  the  ballot,  but  in  a  few 
he  is  the  commissioner  who  receives  the  highest  number  of 
votes.  The  laws  of  Nebraska  and  New  Jersey,  however,  pro- 
vide that  the  mayor  shall  be  chosen  by  the  majority  vote  of 
the  commission.  In  all  cases  the  mayor  receives  a  somewhat 
higher  salary  than  is  paid  to  the  other  commissioners.  This 
difference  may  be  merely  nominal  or  it  may  be  several  times 
the  salary  of  the  commissioners.^ 

According  to  the  original  plan  for  commission  government 
the  mayor  was  little  more  than  the  presiding  officer,  and  as 
mayor  had  no  more  real  power  than  any  of  the  other  commis- 
sioners, although  he  might  be  assigned  to  one  of  the  most 
important,  if  not  the  most  important,  departments  of  adminis- 
tration. According  to  the  original  plan  he  presided  at  the 
meetings  of  the  commission,  represented  the  city  in  a  cere- 
monial capacity,  and  as  commissioner  had  the  right  to  vote  on 
any  matter  before  the  commission.  He  did  not,  however, 
possess  the  veto  or  the  power  of  appointment,  which  were  the 
two  strongest  elements  of  the  mayor's  influence  under  the 
orthodox  system  of  city  government.    The  original  plan  has 


1  Marshall,  Texas,  pays  its  commissioners  $300  and  its  mayor  $1800; 
Waco,  Texas,  pays  its  commissioners  $1000  and  its  mayor  $2400.  These 
cases  arc  abnormal.  Usually  the  mayor  seldom  receives  more  than  four 
fifths  more  salary  than   the  commissioners. 


GOVERNMENT  BY  COMMISSION  437 

been  radically  altered  in  the  spread  of  commission  government.^ 
It  has  already  been  noticed  that  the  mayor  receives  in  practi- 
cally every  instance  a  higher  salary  than  do  the  commissioners. 
Likewise,  attention  has  been  called  to  the  very  important 
power  exercised  by  the  mayor  in  some  cities — that  of  assigning 
the  commissioners  to  the  various  administrative  departments. 
This  tends  to  make  the  mayor  very  much  more  important 
than  anyone  else  or  even  than  all  the  commissioners.  But 
the  extension  of  the  mayor-commissioner's  powers  does  not 
end  here.  In  legislation  the  mayor  not  only  presides  over  the 
commission,  but  in  the  case  of  commissions  of  three  has  the 
deciding  vote  and  in  commissions  of  five  or  seven  very  fre- 
quently the  decisive  vote  in  case  of  a  tie.  He  also  is  ordinarily 
entitled  to  submit  proposals  and  recommendations  and  in  some 
cases  to  prepare  the  budget  for  the  commission.  In  not  a  few 
cities  the  mayor  retains  the  right  of  veto.-  In  Colorado  Springs 
he  is  given  the  item  veto  in  appropriation  measures,  and  a  vote 
of  four  out  of  the  five  members  of  the  council  is  necessary  to 
override  his  veto ;  since  the  mayor  as  a  commissioner  may  vote, 
this  means  that  the  rest  of  the  council  must  be  a  unit  against 
him.  On  the  whole,  however,  the  mayor  possesses  no  power  of 
veto.  In  some  cities — for  example,  Houston,  Texas — he  is  given 
the  power  to  appoint  most  of  the  important  officials  of  the  city, 
and  in  Buffalo  he  is  required  to  acquaint  himself  with  the 
conduct  of  each  department  and  to  report  to  the  commission. 
A  similar  provision  is  found  in  the  Pennsylvania  law.  Thus, 
although  by  theory  the  mayor  was  supposed  to  be  little  more 
than  the  presiding  officer  of  the  commission,  there  is  a  distinct 
tendency  to  exalt  his  powers.  Aside  from  this  legal  extension 
of  his  powers,  the  mayor  exercises  more  influence  than  the 
commissioners  as  a  result  of  the  American  habit  of  creating 
a  "strong"  executive.  Perhaps  it  is  fair  to  expect  that  the 
power  of  the  mayor-commissioners  will  increase  in  the  purely 
commission-governed  cities  as  in  the  usual  system  or  that  these 

^See  R.  M.  Story,  The  American  Municipal  Executive,  pp.   182-198. 

^Highpoint,  North  Carolina;  St.  Paul,  Minnesota;  Chattanooga, 
Tennessee  ;  Greenville,  Houston,  and  Dallas,  Texas.  See  R.  M.  Story, 
The  American  Municipal  Executive,  p.  196  note. 


438      STATE  AND  MUNICIPAL  GOVERNMENT 


(4)  Ap- 
pointed 
officers 


(5)  Inde- 
pendent 
departments 


(6)  Popular 
control 
of  the 

commission: 


(a)  The 
initiative 


will  gradually  alter  their  types  of  government  to  the  city- 
manager  type,  which  will  be  discussed  later. 

Under  the  original  system  of  commission  government  the 
important  subordinate  officers  were  elected  by  the  majority  of 
the  commission.  These  officers  included  the  city  clerk,  the 
treasurer,  the  auditor,  the  city  solicitor,  and  the  chief  of  police. 
The  commissioner  in  charge  of  a  department  had  the  power  to 
appoint  only  the  minor  officials.  This  has  been  departed  from 
in  the  optional  charter  law  of  Massachusetts,  where  the  com- 
missioners make  all  the  appointments  within  their  respective 
departments,  subject  to  ratification  by  the  whole  commission. 

In  most  commission-governed  cities  there  are  independent 
departments  outside  of  the  commission's  control.  In  practi- 
cally all  the  cities  the  administration  of  the  schools  is  intrusted 
to  a  school  board  instead  of  being  controlled  by  th'e  commis- 
sion, although  exceptions  should  be  noticed  in  the  case  of 
Buffalo.  St.  Paul,  Chattanooga,  and  Sacramento.  In  these  cities 
the  commission  acts  as  a  school  board,  appoints  the  school 
superintendent,  and  determines  all  questions  of  educational 
policy.  In  several  cities  the  fiscal  officers,  such  as  the  comp- 
troller and  auditor,  are  not  appointed  by  the  commission,  but 
are  chosen  by  popular  election.^ 

According  to  the  Galveston  plan  the  action  of  the  commis- 
sion was  expected  to  be  conclusive  and  final  unless  overturned 
by  the  state  legislature  or  the  courts.  When  the  plan  was 
adopted  in  Iowa  by  the  city  of  Des  Moines,  the  machinery  of 
direct  popular  control  was  applied  to  the  plan  in  the  form  of 
the  initiative,  the  referendum,  the  protest,  and  the  recall.  The 
initiative,  as  applied  to  commission  government,  differs  little 
from  its  use  in  state  affairs.  An  ordinance  or  order  may  be 
prepared  by  any  person  and,  if  signed  by  a  certain  percent- 
age of  the  voters,  must  be  considered  by  the  commission.  The 
number  of  signatures  necessary  for  initiating  a  measure  varies 
from  5  per  cent  in  South  Dakota  to  40  per  cent  in  the  second- 
class  cities  under  the  commission  government  law  in  Kansas. 

'St.  Paul,  Tacoma,  Houston,  San  Diego,  and  Portland,  OreRon,  and 
the  cities  under  tlic  Pennsylvania  commission-government  law. 


GOVERNMENT  BY  COMMISSION  439 

The  more  common  percentage  is  either  15  or  25.  If  the  com- 
mission adopts  the  measure  proposed  by  the  petitioners,  the 
matter  ends  there ;  but  if  they  desire  to  amend  it  or  refuse  to 
adopt  it,  it  must  be  submitted  to  the  next  general  election,  if 

such  occurs  within  ninety  days,  or  at  a  special  election.    The  (&)The 

-J  protest 
protest  was  a  means  adopted  in  the  Des  Momes  charter  for  de- 
laying the  operation  of  ordinances  passed  by  the  commission 
until  the  people  had  the  opportunity  to  express  themselves. 
Thus,  no  ordinance  except  an  emergency  one  goes  into  effect 
for  ten  days;  if  during  that  time  25  per  cent  of  the  voters  of 
the  city  sign  a  petition  protesting  against  such  an  ordinance,  the 
commission  must  reconsider  their  action.  When  the  ordinance 
is  not  entirely  repealed  by  the  commission  it  must  be  submitted 
to  the  people  at  a  general  election,  if  one  occurs  within  ninety 
days,  or  at  a  special  election.  If  the  ordinance  receives  a 
majority  vote,  it  becomes  operative  at  once ;  if  it  is  rejected, 
it  remains  inoperative.  This  protest  just  described  is  only  an- 
other name  for  the  referendum,  which  has  already  been  dis-  (c)  The 

.  referendum 

cussed.  The  Des  Moines  charter,  however,  requires  that  the 
commission  shall  grant  no  franchise  to  any  public-utility  cor- 
poration without  submitting  the  same  to  the  electorate.  There- 
fore no  franchise  becomes  valid  until  it  has  been  confirmed 
by  the  majority  of  the  electorate  voting  at  that  election.  The 
Des  Moines  charter  provided  for  the  recall  of  the  commis-  (d)  The 

•  1   1  •     1    •  -i      recall 

sioners,  and  this  has  been  quite  widely  copied  m  many  city 
charters.  The  machinery  for  using  the  recall  is  similar  to  that 
which  has  already  been  described.^  The  number  of  signatures 
required  on  the  recall  petition  varies  from  10  per  cent  of  the 
voters  in  the  Virginia  charter  law  to  55  per  cent  under  the 
Illinois  laws.  In  general,  petitions  may  not  be  invoked  against 
a  commissioner  until  he  has  been  in  office  a  certain  length 
of  time,  varying  from  three  to  six  months. 

The  same  arguments  may  be  advanced  against  the  use  of  Merits  of 

...  11  1  !•       popular  con- 

popular  control  in  municipal  government  that  have  been  dis-  troi  under 

cussed  with  regard  to  state  government.    But  these  arguments  g^veTn^ent 
have  not  the  same  validity  when  applied  to  government  by 

iSee  pages  126-128. 


440     STATE  AND  MUNICIPAL  GOVERNMENT 

commission.  In  the  first  place,  it  should  be  noted  that  the 
electorate  of  a  city,  diverse  as  it  is,  is  more  homogeneous  than 
that  of  the  entire  state.  In  the  second  place,  it  should  also  be 
mentioned  that,  except  in  granting  franchises,  the  referendum 
is  always  of  the  optional  type,  which  even  theorists  have  pro- 
nounced the  least  objectionable.  The  obligatory  type  of  the 
referendum  as  applied  to  public  franchises  submits  to  the  voters 
a  question  on  which  they  are  all  supposed  to  be  vitally  inter- 
ested. There  are,  moreover,  certain  considerations  which  would 
favor  the  use  of  these  instruments  of  popular  control.  Gov- 
ernment by  commission  is  a  radical  departure  from  the  time- 
honored  form  of  municipal  government.  It  concentrates  in 
the  hands  of  from  three  to  seven  commissioners  both  the  power 
to  determine  what  the  tax  rate  shall  be  and  the  power  to  spend 
the  money  raised  by  taxation.  The  small  size  of  the  commis- 
sion makes  it  seem  to  many  critics  unrepresentative.  The 
blending  of  the  legislative  and  the  administrative  power  seems 
to  others  a  violation  of  the  sound  principle  embodied  in  the 
separation  of  the  powers  of  government.  Rightly  or  wrongly, 
the  voters  would  hesitate  to  trust  all  these  powers  to  the  same 
small  group  of  men.  The  provision  for  the  initiative  and  refer- 
endum, therefore,  appears  to  safeguard  the  traditional  rights 
of  the  voters  and  to  enable  them  in  crises  to  make  sure  that 
the  commission  shall  carry  out  their  desires.  The  introduction 
of  the  recall  of  commissioners  is  also  probably  a  wise  move. 
It  may  sound  revolutionary  to  those  familiar  with  the  tradi- 
tional type  of  mayor  and  council,  where  the  councilors  in- 
dividually have  very  little  power  and  the  personal  failings  of  a 
single  councilor  hardly  count  among  the  many  members.  In 
the  commission  form  of  government  not  only  has  each  commis- 
sioner far  more  power  than  the  individual  councilors  but  he 
is  charged  with  important  administrative  duties.  It  is  not 
unreasonable,  therefore,  that  an  opportunity  should  be  given 
the  voters  to  correct  the  errors  which  perhaps  were  made  at  the 
original  election.  It  is  significant  that  although  these  weapons 
of  popular  control  are  widely  found  in  commission  charters, 
they  have  not  been  very  frequently  used.  It  is  the  possibility 
of  their  use  in  an  emergency  which  has  brought  satisfaction. 


GOVERNMENT  BY  COMMISSION  441 

The  commission  form  of  government  has  many  advantages,  Merits  and 
as  well  as  a  few  serious  faults  and  several  pretended  faults.^  commission 
The  great  merit  of  the  commission  form  of  government  is  ernme°nfr' 
that  it  concentrates  responsibility.    Whatever  are  the  faults  or  (i)Concen- 

■^  trates  re- 

merits  of  the  orthodox  type  of  city  government,  none  could  sponsibiuty 
claim  that  the  responsibility  was  concentrated.  The  mayor, 
the  administrative  departments,  the  city  council,  and  in  some 
instances  both  bodies  of  the  city  council  were  constantly  shift- 
ing the  responsibility  of  mismanagement  from  one  to  another. 
The  mayor-and-council  system  is  one  in  which  the  checks  and 
balances  are  a  part  of  the  framework.  There  are  no  checks  and 
balances  in  the  framework  of  the  commission  system.  The 
commission  itself  is  all-powerful  to  act  for  better  or  for  worse. 
The  responsibility  is  theirs,  and  they  cannot  avoid  it.  What- 
ever safeguards  do  exist  are  outside  of  the  framework  of 
government  in  the  use  of  the  initiative,  the  referendum,  and 
the  recall. 

By  far  the  greater  part  of  the  work  of  the  city's  governing  (,)  m- 
body  is  not  governmental,  but  administrative.    The  orthodox  business 
form  of  municipal  government  provides  a  system  of  govern-  methods 
ment  which  has  been  well  tested  and  approved  for  govern- 
mental purposes.    Yet  this  system  is  never  adopted  in  any 
business   organization.    The   commission   system   attempts   to 
provide  a  business  organization  for  a  body  engaged  in  busi- 
ness.   After  all,  the  greater  part  of  the  work  of  city  officials  is 
concerned  with  the  paving  of  streets,  the  purveying  of  water, 
the  disposal  of  sewage,  the  building  of  schools  and  other  public 
buildings — all  matters  which  have  little  to  do  with  the  prob- 
lems of  government.     Commission  government   establishes  a 
board  of  directors  similar  to  that  in  a  business  concern  for 
carrying  out  the  city  business. 

In  the  orthodox  type  of  city  government  the  mayor,  the  (3)  Reduces 

,      ,  .  .,     ,  ,.  friction 

administrative  departments,  and  the  city  council   (sometimes 
consisting  of  two  bodies)   all  have  a  hand  in  the  execution 

iThe  best  discussion  of  the  merits  and  faults  of  commission  govern- 
ment is  found  in  W.  B.  Munro's  "Government  of  American  Cities" 
(3d  ed.),  pp.  304-319.  His  analysis  and,  in  most  instances,  his  conclu- 
sions are  briefly  condensed  in  this  criticism. 


officials 


442      STATE  AND  MUNICIPAL  GOVERNMENT 

of  a  city  project.  These  three  or  sometimes  four  independent 
or  semi-independent  bodies  do  not  always  agree.  Some  or  all  of 
them  may  have  their  own  particular  axes  to  grind.  As  a  result, 
under  the  old  type  of  government,  friction  and  delay  not  in- 
frequently occurs ;  under  the  commission  type  the  commissioner 
in  charge  of  the  department  absolutely  controls  it.  It  is  true 
that  the  policy  as  to  what  his  department  shall  do  may  be  de- 
termined either  by  the  vote  of  the  commission  itself  or  by  the 
direct  action  of  the  voters,  but  once  determined,  a  policy  can  be 
carried  out  without  delay  or  friction.  There  is  little  chance  for 
improper  political  influence  in  the  execution  of  the  project. 
(4)  Improves  The  testimony  as  to  the  improvement  of  officials  is  by  no 
of  municipal  means  unanimous.  Investigation  shows  that  a  large  percentage 
of  former  city  officials  gets  into  office  under  the  commission 
system.^  Although  the  same  type  of  men  may  obtain  office 
under  the  new  system,  the  results,  as  will  be  seen,  are  very 
different.  The  testimony  of  men  who  have  served  under  both 
systems  is  that  under  commission  government  there  is  more 
incentive  for  good  administration,  more  opportunity  for  faith- 
ful work.  Ultimately  it  should  be  remembered  that  the  city  is 
what  the  voters  desire  it  to  be,  and  that  no  framework  can 
possibly  be  devised  for  a  better  form  of  government  than  the 
city  desires.  The  open  and  undisguised  responsibility  which 
each  member  of  the  commission  bears  may  frequently  prevent 
the  secret  and  sinister  influence  which  interested  parties  for- 
merly exerted  upon  individual  councilmen  and  may  cause  the 
commissioners  to  act  for  the  good  of  the  city  rather  than  at  the 
dictates  of  a  special  interest. 
(5)isunrep-  The  objection  that  the  commission  is  unrepresentative  is 
based  upon  the  false  assumption  that  a  small  body  is  less  rep- 
resentative than  a  large  one.  If  this  principle  is  carried  to  its 
logical  extreme  all  representative  bodies  are  unrepresentative. 
A  large  body  chosen  by  wards  represents  ward  politics  and 
political  organizations;  a  small  body  chosen  at  large  can,  if  it 
will,  discover  public  sentiment  just  as  accurately  and  is  likely 
to  be  less  hampered  than  a  large  council. 

iW.   M.   Munro,  "Ten  Years  of  Commission   Government,"  National 
Municipal  Review,  Vol.  1,  p.  562, 


resentative 


GOVERNMENT  BY  COMMISSION  443 

The  criticism  that  the  commission  can  be  easily  controlled  (e)  can  be 
rests  on  the  assumption  that  small  bodies  are  more  easily  controlled 
controlled  than  large  ones.  This  is  contrary  to  experience  in 
municipal  government.  The  large  two-chambered  city  council 
of  Philadelphia,  which  formerly  contained  one  hundred  and 
thirty-two  members,  was  as  completely  under  the  control  of 
certain  interests  as  any  small  body  could  possibly  be.^  Sinister 
control  of  legislative  bodies  is  more  apt  to  be  exerted  by  a 
political  machine  and  an  unscrupulous  boss  through  the  power 
of  the  party  organization  than  through  the  corrupt  influencing 
of  the  individual  council  member. 

The  most  fundamental  criticism  of  city  government  by  a  Funda- 
commission  is  that  it  does  not  go  to  the  logical  extreme ;  it  does  criticism  of 
not  sufficiently  concentrate  responsibility ;    it  does  leave  the  government 
opportunity  for  friction,  logrolling,  and  shifting  of  responsi- 
bility within  the  commission.    Under  the  type  of  government 
by  mayor  and  council,  where,  as  in  Boston  or  New  York,  the 
mayor  almost  completely  dominated  the  council,  there  was  a 
very  real  and  definite  responsible  single  head  in  municipal  ad- 
ministration.   This  is  not  so  in  government  by  a  commission, 
although  it  has  been  pointed  out-  that  the  tendency  is  to 
strengthen  and  extend  the  powers  of  the  mayor-commissioner. 
It  is  at  this  point  that  city  government  by  a  commission  falls 
short,   and  here  that   the  second   revolutionary  type   of   city 
government  was  introduced ;   namely,  the  city-manager  form. 

City  government  by  a  commission  has  accomplished  many  Results  of 
good  things,  but  it  has  not  accomplished  all  its  advocates  hoped  ment^by""' 
for.  An  investigation  made  in  191 5  of  eight  cities  showed  that 
they  had  succeeded  in  many  instances  in  reducing  the  per- 
capital  levy  of  property  taxes."'  These  cities  under  commission 
government  also  spent  less  money  per  capita,  but  the  net  per- 
capita  indebtedness  of  the  cities  under  commission  government 

^W.  B.  Munro,  The  Government  of  American  Cities,  p.  314. 

2  See  pages  436-438. 

^United  States  Bureau  of  the  Census,  Comparative  Financial  Statis- 
tics of  Cities  under  Council  and  Commission  Government,  1Q13  and  igi5 
(Washington,  1916),  Table  I,  p.  9.  These  tables  are  reproduced  in 
W.  B.  Munro,  The  Government  of  American  Cities,  p.  319,  and  in 
Bulletins  for  the  Massachusetts  Constitutional  Convention,  Vol.  I,  p.  473. 


commission 


444     STATE  AND  MUNICIPAL  GOVERNMENT 

was  somewhat  greater  than  that  of  eight  cities  under  the  old 
form.  These  statistics  tell  only  a  part  of  the  story — the  in- 
debtedness of  the  cities  in  many  cases  is  an  inherited  one.  The 
slight  difference  in  per-capita  expenditure  ($2.68)  probably 
indicates  that  the  cities'  money  is  more  economically  spent. 
Municipal  government  is  expensive  under  whatever  form  it  is 
attempted.  It  is  probable  that  under  the  commission  form 
less  money  is  wasted  and  the  municipal  revenue  is  more  effi- 
ciently expended  than  under  the  old  type  of  city  government. 
Finally,  it  should  be  noted  that  on  the  whole  government  by  a 
commission  gives  satisfaction.  Only  a  few  cities  which  have 
established  the  commission  form  of  government  have  returned 
to  the  old  type.  The  movement  has  been  rather  in  the  other 
direction,  and  many  commission-governed  cities  have  carried 
the  system  to  the  logical  conclusion  and  adopted  the  city- 
manager  plan. 


CHAPTER  XXV 

TYPES  OF  MUNICIPAL  GOVERNMENT— THE  CITY- 
MANAGER  PLAN 

The  city-manager  plan  may  be  defined  as  a  system  of  munici-  Definition 
pal  government  in  which  the  determination  of  the  municipal  manager 
policy  and  the  general  direction  of  the  city  are  vested  in  a  ^^^ 
council  or  commission,  while  the  administrative  functions  are 
concentrated  in  a  single  executive  chosen  by  the  commission 
and  designated  as  the  city  manager/  The  city-manager  plan, 
therefore,  attempts  to  remedy  several  of  the  evils  which  the 
working  of  the  commission  plan  has  disclosed.  These  evils  were, 
first,  the  friction  and  delay  which  might  result  from  the  major- 
ity of  the  commission  overruling  the  action  of  the  commissioner 
in  charge  of  a  special  department.  Time  and  time  again  this 
has  occurred,  and  the  commissioner,  who  was  departmental 
head,  found  himself  in  no  better  position  than  an  administra- 
tive officer  under  the  council  type  of  government.  Again,  there 
has  been  a  tendency  to  elect  as  commissioners  men  who  were 
supposed  to  possess  expert  knowledge  of  some  department  of 
city  administration.  This  selection  of  administrative  heads  by 
popular  vote  proved  a  failure  under  the  mayor-and-council  type 
of  government,  and  in  most  of  the  modern  city  charters  the 
administrative  heads  were  appointed  by  the  mayor  with  an  in- 
creasing tendency  to  free  such  appointments  from  confirmation 

iln  the  Bulletins  for  the  Massachusetts  Constitutional  Convention, 
Vol.  I,  pp.  489-519,  there  is  a  modern  treatment  together  with  a  digest  of 
the  Dayton  charter  and  a  tabular  view  of  the  condition  of  nine  cities  un- 
der the  city-manager  form  of  government.  W.  B.  Munro,  The  Govern- 
ment of  American  Cities  (3d  ed.),  chap,  xv,  gives  an  excellent  treatment, 
together  with  additional  references.  Mention  should  be  made  of  the  ad- 
mirable monograph  with  full  notes  and  references  prepared  by  Tso-Shuen 
Chang,  History  and  Analysis  of  the  Commission  and  City  Manager  Plans 
(Iowa  City,  1918).  The  files  of  the  National  Municipal  Review,  Ameri- 
can City,  and  Short  Ballot  Bulletins  give  excellent  current  information. 

445 


446      STATE  AND  MUNICIPAL  GOVERNMENT 


Develop- 
ment and 
spread  of 
the  city- 
manager 
movement 


Method  of 
adoption 


by  the  rest  of  the  city  government.  The  theory  of  government 
by  a  commission  was  to  provide  a  council  of  amateurs  who 
would  represent  public  opinion  and  outline  the  policy  for 
the  expert  to  carry  out.  The  system  certainly  resulted  in  the 
choice  of  amateurs  as  members  of  the  commission.  Since,  how- 
ever, the  commission  form  of  government  was  applied  largely 
in  small  cities,  there  seemed  to  be  little  need  for  both  a  paid 
commissioner  and  a  paid  administrator.  As  a  result,  the  com- 
missioner frequently  undertook  to  manage  the  affairs  of  the 
department,  for  which  he  had  little  or  no  qualifications,  and  to 
perform  duties  which  he  was  not  supposed  to  perform  according 
to  the  original  conception  of  the  commission  type  of  govern- 
ment. The  city-manager  movement  carries  the  form  of  com- 
mission government  to  its  logical  conclusion — it  provides  for 
a  small  policy-determining  body  and  a  professional,  expert 
administrator. 

The  first  city  in  the  United  States  to  adopt  a  city  manager 
was  Staunton,  Virginia.  In  1898,  by  a  local  ordinance,  with- 
out charter  provision,  the  greater  part  of  the  administrative 
duties  of  the  old  mayor  and  council  (who  were  retained)  were 
turned  over  to  a  general  manager.  Sumter,  South  Carolina,  in 
1913  obtained  from  the  legislature  a  charter  which  included 
most  of  the  provisions  of  the  city-manager  plan.  The  form  of 
city-manager  government,  however,  was  most  fully  and  carefully 
worked  out  in  the  charter  of  Dayton,  Ohio,  which  went  into 
effect  on  January  i,  1914.  Since  that  date  the  movement  has 
spread  rapidly,  until  about  two  hundred  cities  have  adopted 
this  form  of  government  in  one  shape  or  another.  The  move- 
ment is  largely  confined  to  the  smaller  cities ;  there  are  only 
three  of  more  than  100,000  population — Grand  Rapids,  Michi- 
gan, Dayton,  Ohio,  and  Norfolk,  Virginia — which  have  adopted 
this  plan.  Three  cities  with  populations  between  50,000  and 
100,000  are  administered  under  this  plan,  while  a  large  number 
of  cities  between  10,000  and  50,000  and  a  still  greater  number 
under  io,ooo  have  adopted  either  the  system  with  all  its  details 
or  certain  modifications. 

The  city-manager  plan  has  been  put  into  effect  by  five 
principal  methods.  In  a  few  instances  the  city-manager  feature 


THE  CITY  MANAGER  447 

has  been  grafted  on  the  old  type  of  the  city  government  by 
means  of  a  local  ordinance.  Twelve  states^  provide  for  home 
rule  and  allow  cities  to  frame  their  own  charters,  and  a  number 
of  municipalities  in  California,  Michigan,  Ohio,  and  Texas  have 
taken  advantage  of  this  and  have  acquired  city-manager  char- 
ters. A  few  states  provide  optional  charters,  among  which  is 
generally  found  a  city-manager  plan.  A  large  number  of  cities, 
however,  have  adopted  the  city-manager  plan  as  the  result  of 
special  legislative  charters  granted  to  the  individual  city  as  the 
result  of  a  special  statute.  In  a  few  states  there  exist  general 
city-manager  charter  laws  which  any  city  may  adopt. 

The  plan  adopted  by  Dayton,  Ohio,  has  served  as  a  model  The 
for  most  of  the  other  charters.    Since  these  charters,  however,  manager  ^' 
vary  only  in  details,  it  is  advisable  to  analyze  with  some  care  p^*°- 
the  Dayton  plan  and  then  to  show  some  of  the  variations. 

All  the  municipal  powers  in  Dayton  are  vested  in  a  commis-  (i)  The 
sion  of  live  citizens.  This  commission  is  chosen  at  large  for  a 
term  of  four  years,  either  two  or  three  commissioners  being 
elected  every  alternate  year,  and  is  thus  a  continuous  body. 
Nominations  are  made  at  nonpartisan  primaries  upon  a  petition 
signed  by  at  least  2  per  cent  of  the  registered  voters  of  the 
whole  city.  The  names  of  the  four  or  six  candidates  who  re- 
ceive the  highest  number  of  votes  are  placed  upon  the  ballot 
without  party  designation,  and  the  two  or  three  candidates 
who  receive  the  largest  number  of  votes  at  the  polls  are  de- 
clared elected.  The  commissioner  who  receives  the  highest 
number  of  votes  at  the  election  of  three  commissioners  is 
designated  as  mayor.  It  should  be  noted  that  the  commis- 
sioners are  not  elected  for  any  particular  department,  as  in 
some  of  the  cities  governed  by  commissions ;  in  fact,  according 
to  the  Dayton  plan  a  commissioner  does  not  preside  over  an 
individual  department.  The  mayor  acts  simply  as  the  presid-  [The  mayor] 
ing  officer,  and  in  ordinary  times  has  no  administrative  powers. 
In  some  cities,  however,  he  may,  in  time  of  emergency,  assume 
control  of  the  police  and  govern  the  city  by  proclamation. 
Occasionally  he  is  made  the  sole  judge  as  to  whether  such  an 

^Arizona,     California,     Colorado,     Michigan,     Minnesota,     Missouri, 
Nebraska,  Ohio,  Oklahoma,  Oregon,  Te.xas,  and  Washington. 


448      STATE  AND  MUNICIPAL  GOVERNMENT 

emergency  exists  or  not/  In  Dayton  the  commissioners  receive 
(a)  Salary  a  Salary  of  $1200  a  year  and  the  mayor  S1800.  Any  member 
(6)  Subject  of  the  commission,  after  he  has  been  in  office  six  months,  is  sub- 
to  recall  jg^^  ^^  recall  on  a  petition  signed  by  25  per  cent  of  the  voters. 
(c)  Duties  The  general  duties  of  the  commission  are  to  enact  ordinances 
and  adopt  regulations  for  the  government  of  the  city.  All 
ordinances  adopted  by  the  commission  are  subject  to  a  refer- 
endum, and  the  initiative  may  be  invoked  in  case  the  commis- 
sion fails  to  act.  In  so  doing,  the  commission  may  create  or 
abolish  departments,  may  levy  taxes  and  vote  appropriations, 
and  may  investigate  the  financial  transactions  of  any  depart- 
ment. It  elects  its  own  clerk  (who  also  serves  as  city  clerk) 
and  appoints  the  civil-service  board.  It  has  no  direct  control 
over  the  administration  of  the  city.  Probably  its  most  impor- 
tant function  is  the  election  of  the  city  manager,  and  it  is 
through  his  selection  or  recall  that  the  commission  is  most 
effective  in  controlling  the  administrative  affairs  of  the  city. 
(2)  The  city  The  city  manager  in  Dayton  is  elected  by  the  majority  vote 
of  the  commission  for  no  fixed  term,  at  a  salary  named  by  the 
commission.  He  is  thus  at  any  time  subject  to  recall  by  the 
commission ;  and  in  Dayton,  contrary  to  the  common  practice, 
he  may  be  popularly  recalled  as  well.  The  charter  of  Dayton 
and  of  most  city-manager  cities  provides  that  the  city  manager 
shall  be  appointed  without  regard  to  his  political  beliefs,  that  he 
shall  be  an  expert,  and  not  necessarily  a  resident  of  the  city. 
Dayton  and  many  of  the  cities  adopting  this  plan  have  at- 
tempted to  obtain  the  best  type  of  administrator  possible,  with- 
out regard  to  either  residence  or  political  affiliation.  Many  of 
the  smaller  cities  have  advertised  for  city  managers  and  have 
chosen  their  executives  as  the  result  of  the  comparative  and 
competitive  examination  of  their  records.  In  not  a  few  instances 
managers  of  small  cities  have  been  called  to  similar  positions 
in  larger  and  more  important  places.  This  system  of  obtain- 
ing the  city  manager  irrespective  of  his  residence  or  politics 
is  one  of  the  most  healthful  results  of  the  city-manager  move- 
ment. As  has  been  said,  the  chy  manager  of  Dayton  is  subject 
to  popular  recall.    This  is  considered  a  grave  mistake  by  most 

1  R.  M.  Story,  The  American  Municipal  Executive,  p.  202. 


manager: 


THE  CITY  MANAGER  449 

critics,  for  it  forces  the  city  manager  to  satisfy  the  general 
public  in  carrying  out  the  directions  of  the  commission,  to 
which  he  is  responsible.  It  can  be  defended  in  the  Dayton 
charter  only  on  the  ground  that  it  was  a  compromise  necessary 
in  order  to  secure  the  adoption  of  the  system. 

The  city  manager  exercises  great  influence  in  his  advisory  (a)  Advis- 
capacity.  He  attends  the  meetings  of  the  commission  and  has  °^^  ^^"^^ 
the  right  to  take  part  in  the  discussion.  He  thus  may  pro- 
pose, defend,  or  plead  for  the  adoption  of  any  particular  policy, 
but  he  has  no  vote  in  determining  this  policy.  However,  it 
may  be  expected  that  the  advice  of  a  manager  appointed  by 
a  commission,  and  one  in  whom  the  commission  has  full 
confidence,  will  have  great  weight. 

The  city  manager  in  Dayton  and  in  most  other  cities  is  the  (t)  Execu- 
real  and  practically  the  sole  executive  of  the  city.    By  charter   ^^  ^  ^  "^ 
he  is  instructed  to  see  that  the  ordinances  are  enforced,  and  he 
is  the  executive  officer  who  is  intrusted  with  carrying  out  the 
policy  of  the  commission. 

In  Dayton  and  in  most  cities  operating  under  this  form  of  (c)  Power  of 
government  the  city  manager  is  given  wide  appointing  power,  ment  and 
The  city  officials  in  Dayton  are  divided  into  the  "classified"  "^^^o^^^ 
and  "unclassified"  services,  the  latter  including  the  heads  of 
the  administrative  departments.  The  city  manager  may  appoint 
these  officials  on  any  basis  and  according  to  any  rules  he  may 
determine ;  no  confirmation  by  the  commission  is  required.  He 
also  is  given  authority  to  remove — for  any  reason,  at  any  time 
— any  of  his  appointees  in  the  "unclassified"  service.  All 
subordinates  are  put  upon  what  is  known  as  the  "classified" 
service.  The  city  manager  may  appoint  these  subordinates, 
but  only  in  accordance  with  rules  established  by  the  municipal 
civil-service  commission.  He  may  likewise  remove  any  mem- 
ber of  the  classified  service,  but  only  after  a  hearing  before 
the  civil-service  board  upon  charges  made  in  writing  and  in 
accordance  with  the  proper  procedure. 

The  city  manager  has  the  control  of  all  city  departments,  (d)  super- 

TT  •  •  1  re    •  r  •  1-         •      vises  all  City 

He  may  mvestigate  the  affairs  of  any  department  either  in  departments 
person  or  through  investigators  appointed  by  him.    He  keeps 
the  departments  in  touch  with  one  another,  adjusts  their  plans, 


450      STATE  AND  MUNICIPAL  GOVERNMENT 

and  settles  any  differences.     Through  his  power  to  appoint 
and  remove  the  head  of  every  department  he  can  make  his 
directions  compulsory. 
(3)  Admin-        The  Dayton  charter  estabHshes  five  administrative  depart- 
departments  ments :  finance,  law,  public  welfare,  public  safety,  and  public 
service.  Each  of  them  is  under  a  director,  who,  as  has  been  said, 
is  appointed  by  and  is  responsible  to  the  city  manager.    The 
duties  of  most  of  the  departments  are  explained  by  their  titles, 
but  it  is  worth  while  to  note  the  work  of  certain  bureaus  which 
have  been  established  within  the  departments  by   ordinance 
of  the  commission.  For  example,  the  department  of  finance  has 
three  divisions;   namely,  the  treasury,  the  accounting,  and — 
perhaps  of  most  importance  in  developing  economical  adminis- 
tration— the  bureau  of  purchasing.    The  department  of  public 
safety  has  divisions  for  police,  fire  protection,  sealing  of  weights 
and  measures,  and   inspection  of  buildings.     There  are   four 
divisions  in  the  department  of  public  service :   ( i )  the  division 
of  engineering,  with  the  bureaus  of  design  and  construction, 
sewer   maintenance,   and   street-lighting;    (2)    the  division  of 
streets,  with  the  bureaus  of  waste  removal,  street-cleaning,  and 
street  repair;   (3)  the  division  of  water;  and  (4)  the  division 
of  public  lands  and  buildings.    The  department  of  public  wel- 
fare includes  the  divisions  of  health,  parks,  playgrounds,  legal 
aid,  correction,  and  the  local  employment  agency. 
(4)  Pinan-         The  Dayton  charter  is  unique  in  the  attention  it  pays  to  the 
8ions"^°^'      financial  details  of  the  city  government.    INIany  of  the  charters 
providing  for  the  new  types  of  city  government  are  content  to 
prescribe  a  framework  which  is  left  to  be  filled  in  by  municipal 
ordinances.    The    Dayton   charter   goes   into   great   detail    in 
prescribing  provisions  for  budget-making  and  purchasing.  The 
estimates  for  the  budget  are  prepared  by   the  city  manager 
from  data  furnished  him  by  the  department  heads.    These  esti- 
mates are  then  published  and  submitted  to  the  city  council. 
The  charter  also  requires  that  before  the  commission  acts  upon 
it  public  hearings  shall  be  held.    Almost  as  important  as  the 
provisions  for  the  budget  is  the  system  prescribed  for  municipal 
accounting,  which  provides  for  an  accurate  determination  of 
the  costs  of  all  the  city  services.    Finally,  a  central  purchasing 


THE  CITY  MANAGER  451 

agent  is  provided,  who  buys  the  supplies  for  all  the  depart- 
ments of  the  city.  Many  of  the  provisions  with  regard  to 
finance,  accounting,  and  purchasing  which  are  found  in  the 
Dayton  charter  may  prove  in  practice  a  little  too  rigid,  yet 
they  are  a  noteworthy  effort  to  remedy  the  abuses  which  have 
been  disclosed  in  these  departments  of  city  government. 

The  Ashtabula  plan  for  a  city  manager  is  an  attempt  to  The 

f-i  ...  ,  .  iT^  T  T     Ashtabula 

meet  one  of  the  criticisms  made  against  the  Dayton  plan.  It  plan 
has  been  held  that  the  Dayton  plan  of  providing  for  the  elec- 
tion of  all  the  commissioners  at  large  does  not  adequately  insure 
minority  representation.  In  the  Ashtabula  plan  the  seven  mem- 
bers of  the  council  are  elected  by  means  of  the  Hare  system 
of  proportional  representation.  This  has  already  been  de- 
scribed.^ In  the  elections  which  have  been  held  under  this  system 
the  dangers  feared  by  the  critics  of  proportional  representation 
were  not  realized.  A  more  vital  danger  was  disclosed  perhaps 
in  the  fact  that  the  members  of  the  council  so  elected  repre- 
sented very  definite  racial,  religious,  or  economic  groups  and 
lacked  homogeneity  of  political  purpose. 

The  city-manager  plan  is  too  new  for  an  accurate  estimate  Results  of 
of  what  has  actually  been  accomplished.    Yet  in  the  years  in  manager 
which  it  has  been  in  operation  it  has  apparently  satisfied  the  p^^° 
cities  which  have  adopted  it,  as  no  city  has  returned  either  to 
the  commission  or  to  the  mayor-and-council  type  of  municipal 
government.    The  commission  appointed  to  compile  informa- 
tion and  data  for  use  in  the  Massachusetts  Constitutional  Con- 
vention, under  the  direction  of  Professor  Munro,  sent  in  1915 
to  nine  typical  city-manager  cities  a  list  of  forty-live  definite 
questions.-    The  answers  to  some  of  these  questions  are  tabu- 
lated in   the   Bulletins    for   the   Massachusetts   Constitutional 
Convention •'■   and   are  amplified   by   Professor   Munro   in   the 
latest  edition  of  "The  Government  of  American  Cities."^    His 

iSee  pages  102-104;  also  A.  R.  Hatton,  The  Ashtabula  Plan,  in 
National  Municipal  Review,  Vol.  V,  pp.  56-65. 

-These  cities  were  Bakersfield,  California;  Jackson  and  Manistee, 
Michigan  ;  Dayton  and  Springfield,  Ohio  ;  La  Grande,  Oregon  ;  Amarillo 
and  Sherman,  Texas;  and  Staunton,  Virginia. 

^Vol.  I,  pp.  506-508. 

4Pp.  395-398. 


452      STATE  AND  MUNICIPAL  G0VERN:MENT 


Financial 
results 


conclusions  are  similar  to  the  evidence  which  is  set  forth  in 
the  City  Managers'  Year  Book  and  in  other  publications.    In 
City  general  they  show  that  the  city-manager  system  has  succeeded 

are'e^xperts  in  obtaining  experts  in  administration.  As  has  been  pointed 
out,  many  of  the  smaller  cities  choose  their  managers  as  the 
result  of  adv^ertising  and  of  comparative  records.  The  result 
is  that  not  only  are  the  cities  attempting  to  secure  experts,  but 
men  are  training  themselves  for  this  profession.  The  type  of 
man  most  frequently  selected  is  an  engineer — preferably  one 
who  has  had  experience  in  municipal  affairs.  In  most  cases  the 
city  manager  is  not  a  resident  of  the  city ;  this  is  all  to  his 
advantage,  inasmuch  as  he  starts  with  a  clean  slate  and  free 
from  local  prejudices.^ 

The  published  reports  show  that  all  the  nine  cities  kept 
within  their  revenue  and  were  not  obliged  to  issue  bonds.  In 
Springfield,  Ohio,  for  example,  a  floating  debt  of  $120,000  was 
liquidated  in  two  years.  The  bonded  indebtedness  in  Jackson, 
Michigan,  was  reduced  by  $50,000  and  a  floating  indebtedness 
of  Si4,ooo  paid  off.  In  most  of  the  cities  reporting,  the  tax 
rate  either  was  not  raised  or  was  actually  lowered.  All  but 
one  of  the  cities  reported  that  new  and  improved  accounting 
methods  were  introduced,  and  in  all  of  them  the  budget  system 
is  followed,  generally  of  the  segregated  type.  The  city  man- 
ager in  four  of  the  cities  acts  as  purchasing  agent  for  all 
supplies,  while  in  three  cities  separate  purchasing  agents  are 
established. 

The  adoption  of  the  city-manager  plan  has  resulted  in  greater 
administrative  efficiency.  The  work  of  the  heads  of  the  various 
departments  is  coordinated  and  kept  in  harmony  through  the 
manager,  while  the  discipline  and  management  of  the  municipal 
employees  is  taken  out  of  politics  and  governed  by  principles 
of  efficiency.  A  great  deal  has  been  done  for  the  improvement 
of  the  city  in  the  care  of  the  public  health  and  the  general 
betterment  of  the  community.  This  has  been  accomplished  in 
most  cases  without  increasing  the  tax  rate,  through  methods  of 
greater  economy  and  efficiency. 

^American  City,  \'ol.  XII,  pp.  400-51.],  and  Vol.  XIII,  pp.  419-421, 
gives  brief  biographical  sketches  of  some  of  (lie  city  managers. 


Adminis- 
trative 
efficiency 


THE  CITY  MANAGER  453 

The  popularity  and  success  of  the  city-manager  movement 
indicates  that  it  is  a  system  which  has  become  a  permanent 
type  of  American  municipal  government  and  which  probably 
will  be  extended.  Many  of  the  three  hundred  cities  which  have 
adopted  the  commission  form  of  government  will  not  find  it 
satisfactory  for  their  purposes,  and  it  is  more  likely  that  they 
will  carry  the  principles  to  their  rational  conclusion  and  adopt 
the  city-manager  system  than  that  they  will  revert  to  the 
mayor-and-council  type.  Also,  more  and  more  cities  are  adopt- 
ing the  plan  each  year.  It  seems  to  be  a  logical  develop- 
ment of  the  attempt  to  place  the  government  of  our  cities  upon 
a  business  basis. 


CHAPTER  XXVI 

ADMINISTRATIVE  DEPARTMENTS:  OFFICIALS  AND 

EMPLOYEES 

AD:\riNisTRATivE  Departments 

Position  of  The  administrative  departments  occupy  a  unique  position  in 
tivTdepart'-  municipal  government  in  the  United  States.^  In  Great  Britain 
ments  in       administration  is  conducted  by  means  of  committees  of   the 

American  •' 

municipal  borough  councils.  In  the  burgomaster  type  of  organization  as 
government 

adopted  in  Germany  the  heads  of  the  administrative  depart- 
ments are  usually  the  subordinates.  In  France  the  mayor  is 
the  repository  of  all  the  executive  power,  and  although  the 
adjoints  are  elected  by  the  council  their  duties  are  assigned 
them  by  the  mayor,  who  retains  a  nominal  if  not  actual  control 
over  them.  In  England  the  committees  of  the  council  (which 
is  the  policy-determining  body)  constitute  the  administrative 
departments.  The  German  city  council  determines  the  policy, 
which  the  administrators  carry  out  independently  of  the  coun- 
cil. In  France  and  to  a  certain  extent  in  Italy  the  council 
chooses  the  administrators,  but  the  mayor  as  executive  directs 
and  controls  their  policies  and  acts.  Examples  may  be  found 
in  the  United  States  of  these  three  types  of  administrative 
departments.  Yet  the  general  tendency  here  is  toward  self- 
contained  administrative  departments,  which,  to  a  large  degree, 
are  beyond  the  immediate  control  of  the  city  council. 

Originally  the  supervision  and  actual  conduct  of  administra- 
tion was  one  of  the  functions  of  the  city  council.  As  has  been 
seen,   the  slight  administrative  functions   undertaken  by  the 

^W.  B.  Munro,  The  Government  of  American  Cities  (3d  ed.),  chap,  x, 
gives  a  clear  account  of  the  position  and  organization  of  administrative 
departments,  together  with  references  to  other  material.  Nathan  Mathews, 
Municipal  Charters,  chap,  vi,  deals  with  the  organization  of  the  adminis- 
trative departments  and  the  appointment  of  the  officials. 

454 


ADMINISTRATIVE  DEPARTMENTS  455 

cities  in  the  early  years  of  the  nineteenth  century  were  carried  Deveiop- 
out  by  committees  of  the  council.    The  deterioration  in   the  administra- 
character  of  the  council  and  the  inefficiency  of  its  work  in  ^entsTiT"^^ 
administration  led  to  a  change.  At  first  the  functions  of  admin-  the  united 

^  states 

istration  were  given  to  boards  or  officials  chosen  not  by  the 
council  but  by  the  electorate  at  the  polls.  This  was  the  begin- 
ning of  the  creation  of  independent,  self-sufficient  administra- 
tive departments.  Election  was  soon  found  to  be  a  poor  way 
of  securing  administrative  efficiency.  Consequently  the  choice 
of  boards  or  officials  was  vested  in  the  mayor,  either  with  or 
without  the  confirmation  of  the  city  council.  In  some  instances, 
however,  administrative  departments  were  created  whose  heads 
were  chosen  by  the  council.  The  general  tendency  under  the 
mayor-and-council  system  of  government  is  toward  the  estab- 
lishment of  administrative  departments  under  the  direction  of 
the  mayor;  that  is,  the  heads  of  these  departments  in  many 
cities  are  appointed  and  removed  by  the  mayor  without  regard 
to  the  city  council.  The  same  tendency  is  to  be  noticed  in  the 
city-manager  type  of  government,  where  the  city  manager 
appoints  and  supervises  the  departments  independently  of  the 
council.  In  commission  government  each  commissioner  is  nom- 
inally the  head  of  an  administrative  department  and  nominally 
responsible  for  its  operation,  but  practically  the  other  members 
of  the  commission  too  often  interfere  in  the  management  of  a 
department  and  sometimes  overrule  the  commissioner  in  charge. 
It  v^^as  because  of  this  tendency  that  the  city  manager  was  made 
solely  responsible  for  the  administration  of  all  the  departments. 

The  city  council  under  every  form  of  government  should  Extent  to 
control  the  policies  of  the  various  departments.    It  is  the  legis-  council 
lative  or  policy-determining  body,  and  its  proper  function  is  to  tSSeT- 
decide  what  shall  be  done  in  municipal  administration.    Fur-  partments 
thermore,  the  city  council  exercises  the  power  of  taxation  and 
appropriation  and  thus,  through  its  control  of  finance,  deter- 
mines to  a  very  large  degree  the  activities  of  the  administrative 
departments.     This  will   be  brought   out  clearly   in   the   dis- 
cussion of  the  financial  administration  of  the  city  and,  particu- 
larly, of  the  administrative  power  which  it  exercises  through 
the  budget.    There  can  be  no  question  but  that  the  ultimate 


456     STATE  AND  MUNICIPAL  GOVERNMENT 

control  of  the  administrative  departments  must  lie  either  in  the 
city  council  or  in  the  voters  acting  directly  through  the  initia- 
tive and  referendum.  The  real  problem  is  how  this  control  can 
best  be  exercised  so  that  the  council  shall  freely  exercise  the 
policy-determining  power,  and  the  administrative  departments 
be  equally  free  in  carrying  out  this  already  determined  policy 
and  in  conducting  their  affairs  without  interference  on  the  part 
of  the  council.  At  the  one  extreme  stands  the  system  in  opera- 
tion in  city-manager  cities,  where  the  council  is  theoretically 
prohibited  from  all  interference  and  the  administrative  depart- 
ments are  solely  responsible  to  the  city  manager ;  at  the  other 
extreme  is  the  method  of  administration  by  committees  of  a 
council  in  vogue  in  England  and  to  a  slight  extent  in  some 
American  cities. 
Advantages  Theoretically  there  is  much  to  be  said  in  favor  of  conducting 
committees  municipal  administration  by  means  of  council  committees.^ 
as  admin-     ^^^  ^^le  least  among  these  advantages  is  the  fact  that  it  makes 

1  strati  ve  °  ° 

bodies  service  in  the  city  council  attractive.     It  is  stated  that  the 

decline  in  the  caliber  of  council  members  was  due  to  the  fact 
that  the  councilmen  had  few  attractive  functions  to  perform. 
The  argument  is  that  if  more  was  given  to  the  councilors  to 
do,  a  better  type  of  man  would  be  attracted  to  do  it.  This 
may  be  true  in  theory,  but  historically  the  character  of  the 
council  declined  at  a  time  when  it  was  performing  practically 
all  the  functions  of  administrative  departments.  One  may  well 
doubt  whether  the  traditions  of  seventy  years  could  easily  be 
overcome  and  men  of  experience  and  administrative  ability 
secured  for  the  city  council  even  if  its  functions  were  extended. 
Emphatically  this  is  likely  to  be  the  case  under  the  system  of 
the  mayor  and  council.  Administration  by  council  committees, 
however,  does  embody  a  sound  principle.  As  has  been  pointed 
out  the  council  is  the  policy-determining  body  in  the  city  gov- 
ernment, and  it  also  controls  the  purse.  It  is  ridiculous  to 
expect  that  an  elected  body  endowed  with  these  powers  will 
surrender  them  entirely  to  appointive  officials.  And  even  if 
the  charter  of  the  city  makes  such  a  provision,  members  of  the 
city  council  would  still  individually  exercise  intluence.  Thus, 
'See  W.  B.  Munro,  The  Government  of  American  Cities,  pp.  237-239. 


ADMINISTRATIVE  DEPARTMENTS  457 

theoretically,  administration  by  council  committees  has  much 
in  its  favor;  practically,  it  has  failed  to  work  satisfactorily  in 
the  United  States. 
The  number  of  administrative  departments  varies  greatly  in  Number  of 

...  .    .     adminis- 

different  cities,  depending  both  on  the  extent  to  which  munici-  trative 
pal  administration  is  developed  and  on  the  extent  to  which  the  ^p^^"^^"  ^ 
various  fields  have  been  sharply  differentiated.  In  addition  to 
the  regular  administrative  departments,  which  are  more  or  less 
under  the  control  of  the  city  government,  there  are  often  to  be 
found  boards,  commissions,  and  officials,  sometimes  under  direct 
state  control  and  sometimes  occupying  an  anomalous  position. 
New  York  City  maintains  15  administrative  departments; 
Chicago,  12;  Philadelphia,  11;  Boston  more  than  30;  St. 
Louis,  16.  As  has  been  shown  in  the  chapter  on  commission 
government,  the  tendency  is  to  reduce  the  number  of  these 
departments,  and  most  cities  of  middle-size  are  able  to  group 
their  administrative  affairs  into  five  or  six  departments.  In  gen- 
eral, these  departments  could  be  organized  as  follows :  ( i )  the 
legal  department;  (2)  the  department  of  finance,  which  would 
deal  with  assessments,  taxes,  the  treasurer's  office,  and  the 
auditor;  (3)  the  department  of  public  safety,  which  would 
include  the  police  and  fire  departments,  the  inspection  of  build- 
ings, and  the  granting  of  licenses  ;  (4)  the  department  of  public 
works,  dealing  with  the  construction  and  maintenance  of  public 
buildings,  streets,  sewers,  parks,  and  playgrounds;  (5)  the  de- 
partment of  public  health.  In  most  cities  the  department  of 
education  is  entirely  separate  from  the  other  administrative 
operations  of  the  city  government  and  is  intrusted  to  an  inde- 
pendently chosen  school  committee.  Individual  cities,  however, 
may  find  it  advantageous  to  group  their  administrative  func- 
tions in  a  different  organization.^  The  modern  tendency  is  not 
only  toward  the  reduction  of  the  number  of  these  departments 
but  toward  their  closer  correlation,  in  order  that  the  work  of 
the  city  may  be  viewed  as  a  whole  and  the  different  functions 
not  duplicated  by  separate  departments.    In  a  very  few  cities 

iSee  W.  B.  Munro,  The  Government  of  American  Cities,  p.  251  note; 
also  Nathan  Mathews,  Municipal  Charters,  pp.  54-55)  for  charts  showing 
various  types  of  administrative  organization. 


458     STATE  AND  MUNICIPAL  GOVERNI^IENT 


Method  of 
choosing 
heads  of 
depart- 
ments : 
(i)  Popular 
election 

(2)  Election 
by  the  city 
council 

(3)  Appoint- 
ment by  the 
mayor  with 
confirma- 
tion by  the 
city  council 


(4)  Appoint- 
ment by 
the  mayor 
without  con- 
firmation 


(5)  Selec- 
tion by  the 
state 


the  heads  of  the  administrative  departments  act  as  a  cabinet 
to  the  mayor,  and  under  the  city-manager  type  the  compara- 
tively small  number  of  departments  enables  the  city  manager 
to  keep  their  work  closely  correlated  and  under  his  supervision. 
In  general,  there  are  five  ways  by  which  the  heads  of  admin- 
istrative departments  are  now  selected.  In  most  cities  one  or 
more  departments  have  at  their  head  officials  chosen  by  popu- 
lar election.  This  is  particularly  true  in  the  case  of  the  finan- 
cial department,  and  the  city  auditors  and  the  city  treasurer 
are  quite  commonly  popularly  elected.  In  a  large  number  of 
cities  not  of  the  first  class  the  executive  officers  of  some  depart- 
ments are  still  elected  by  the  city  council.  In  many  cities 
officials  are  appointed  by  the  mayor  subject  to  confirmation.  It 
is  the  usual  traditional  method  adopted  when  popular  election 
proved  unsatisfactory,  but,  as  has  been  pointed  out,  it  has 
resulted  in  a  method  of  shifting  responsibility  rather  than  in 
efficient  administration.  Appointment  by  the  mayor  without 
confirmation  is  the  method  which  is  followed  in  most  of  the 
larger  cities  and  is  increasing  in  popularity.  It  concentrates 
the  responsibility  directly  upon  the  mayor  and  enables  him 
through  his  power  of  appointment  to  insure  a  consistent  policy. 
In  a  few  cities  the  heads  of  some  administrative  departments 
are  chosen  by  the  state  authorities.  According  to  this  method 
the  city  government  has  no  voice  in  the  selection  of  the  heads 
of  its  administrative  departments.  This  has  been  tried  in  the 
police  administration  of  some  of  the  largest  cities,  where  the 
police  commission  or  commissioner  was  sometimes  appointed 
by  the  state  legislature.'  This  method  is  a  violation  of  the 
principle  of  municipal  home  rule,  but  the  desperate  condition 
of  the  cities  to  which  it  was  applied  necessitated  heroic  meas- 
ures. Since  the  city  government  is  deprived  of  all  voice  in 
the  choice  of  such  an  official,  it  not  infrequently  puts  many 
obstacles  in  his  path  and  through  control  of  the  purse  is  able 
to  prevent  a  department  from  running  smoothly .- 


^Thc  governor  appoints  the  commissioner  of  police  for  Boston;  the 
Maryland  IcRislalurc  elects  the  three  police  commissioners  for  Baltimore. 

-In  a  few  cities  the  state  courts  make  appointments;  (iic  fifteen  mem- 
bers of  the  rhiladelphia  board  of  education  arc  appointed  by  the  court 


ADMINISTRATIVE  DEPARTMENTS  459 

The  head  of  an  administrative  department  should  be  an  ex-  Quaiiflca- 
pert  in  administration  rather  than  in  the  affairs  of  the  particu-  heads  of^ad- 
lar  department  over  which  he  presides.  Technical  experts  are  ™e°artmenr 
necessary  in  the  conduct  of  city  affairs,  but  their  place  is  not 
at  the  head  of  the  departments ;  executive  ability,  personality, 
wide  vision,  are  more  necessary  than  scientific  knowledge  of 
the  working  of  the  departments.  Thus,  in  a  large  city  the 
police  commissioner  must  possess  the  foregoing  qualities,  while 
the  chief  of  police  can  be  relied  upon  to  apply  his  expert  knowl- 
edge in  carrying  out  the  directions  of  the  commissioner.  In 
most  cities  administrative  departments  are  manned  by  ap- 
pointees chosen  more  or  less  according  to  the  rules  of  civil- 
service  boards,  but  in  only  one  instance  (Boston)  are  the  heads 
of  the  administrative  departments  subject  to  approval  by  the 
civil-service  commission.  The  ordinary  civil-service  tests  and 
competitive  examinations  are  not  applicable  to  the  choice  of 
the  executive  head ;  few  tests  other  than  actual  experience  can 
show  executive  ability,  personality,  and  breadth  of  vision.  Con- 
sequently the  ordinary  practice  in  the  United  States  is  sound 
in  not  requiring  the  appointment  of  the  heads  of  departments 
as  the  result  of  competitive  examinations.  Yet  sad  experience 
has  shown  the  necessity  for  devising  some  check  upon  appoint- 
ment by  the  mayor.  Too  often  the  mayor  regards  the  heads 
of  the  departments  as  mere  currency  with  which  to  pay  his 
political  debts,  and  appoints  a  man  for  partisan  service  rather 
than  for  executive  ability. 

The  Boston  plan  has  already  been  mentioned  in  connection  Effect  of  the 
with  the  appointing  power  of  the  mayor.^    Attention,  however,  upon  ad- 
should  be  called  to  it  again  in  connection  with  its  effect  upon  ^'paru^ents 
the  qualifications  of  the  administrative  departments.    Briefly, 
the  Boston  plan  vests  in  the  mayor  the  appointment  of  all 
administrative  officials,  except  the  police  commissioner  with- 
out the  confirmation  of  the  city  council ;  but  it  requires  that 
the  civil-service  commission — a  state  body  appointed  by  the 

of   common   pleas.     See   W.   B.  Munro,  The    Government   of   American 
Cities,  p.  247.    Little  can  be  said  in  favor  of  this  mingling  of  judicial  and 
administrative  duties. 
iSee  page  428. 


46o     STATE  AND  MUNICIPAL  GOVERNMENT 

governor — shall  certify  that  the  mayor's  candidate  is  qualified 
for  the  post  by  training  or  experience.  It  should  be  noted  that 
this  plan  is  not  in  any  sense  competitive.  There  is  no  obliga- 
tion either  upon  the  mayor  or  upon  the  civil-service  commission 
to  appoint  or  certify  to  the  appointment  of  the  best  candidate, 
but  only  of  one  who  is  fitted  "by  education,  training,  or  experi- 
ence to  perform  the  duties"  of  the  office.  It  must  be  admitted 
that  this  plan  is  a  violation  of  the  principle  of  complete  home 
rule  in  that  it  restricts  the  choice  of  the  mayor.  On  the  other 
hand,  the  responsibility  still  rests  with  the  mayor,  for  he  is  the 
appointing  authority  and  is  checked  only  from  making  appoint- 
ments which  are  obviously  unfitting.  During  the  time  this  plan 
has  been  in  operation  it  has  protected  Boston  from  the  worst 
type  of  political  appointments  even  if  it  has  not  given  the  best 
kind  of  administrative  heads.  Even  this  little,  however,  should 
be  counted  to  its  credit.  The  Boston  plan  has  not  been  adopted 
in  city-manager  cities,  probably  because  the  city  manager  is 
supposed  to  be  above  political  influence  and  his  success  de- 
pendent upon  the  administration  of  the  various  departments. 
Yet  it  is  somewhat  remarkable  that  other  cities,  in  attempts  to 
reform  municipal  administration,  have  not  adopted  something 
analogous  to  the  Boston  plan. 

Terms  of  No  fixed  term  can  be  laid  down  for  the  heads  of  departments. 

departments  Much  depends  upon  the  nature  of  the  work  the  department  is 
called  upon  to  perform.  Where  such  work  involves  a  program 
extending  over  considerable  time,  the  head  of  the  department 
should  be  given  opportunity  to  demonstrate  his  ability  in  carry- 
ing out  this  plan.  In  general,  it  may  be  said  that  the  terms  of 
department  heads  are  too  short  and  that  the  incumbent  is  not 
given  sufficient  opportunity  either  to  familiarize  himself  with 
the  work  of  his  department  or  to  put  through  a  program  of 
work  or  reorganization.  Under  the  ordinary  types  of  munic- 
ipal framework  indefinite  terms  are  not  favored,  as  they  tend 
to  encourage  interference  on  the  part  of  the  city  govern- 
ment and  attempts  to  curry  favor  on  the  part  of  the  incum- 
bent. Less  objection  can  be  made  to  indefinite  terms  under  the 
city-manager  type  of  government.  The  city  manager  himself 
h(jl(ls  his  office  for  no  fixed  term;   since  he  has  the  full  and 


ADMINISTRATIVE  DEPARTMENTS  461 

unrestricted  power  of  appointment  of  the  heads  of  departments, 
together  with  the  power  of  removal,  there  seems  no  reason  why 
such  department  heads  should  not  serve  during  pleasure. 

There  are  almost  as  many  methods  for  the  removal  as  there  Removals 
are  for  the  appointment  of  administrative  officers.  Where  the 
administrative  officer  is  chosen  by  popular  election,  he  cannot 
be  removed  during  his  term  except  for  grave  misconduct,  un- 
less the  system  of  popular  recall  is  in  vogue.  Where  the  officer 
is  chosen  by  the  city  council,  the  council  may  usually  suspend 
or  remove  the  official.  If  the  mayor  and  council  share  in  the 
appointment,  the  concurrence  of  both  is  necessary  in  order  to 
remove.  In  those  cities  where  the  mayor  alone  appoints  he  is 
usually  given  the  power  of  removal,  although  a  public  hearing 
may  be  demanded.  In  Boston,  where  the  mayor  appoints  with 
the  consent  of  the  civil-service  commission,  he  has  the  sole 
power  of  removal.  The  whole  tendency  is  to  surround  removal 
with  restrictions  sufficient  to  prohibit  unjust  and  capricious 
removals,  although  it  must  be  admitted  that  these  restrictions 
are  of  little  avail.  As  Professor  Munro  has  well  pointed  out,^ 
the  only  effective  security  against  unjust  removals  is  tradition 
backed  by  active  public  opinion. 

The  salaries  paid  to  heads  of  administrative  departments  are  salaries 
far  below  those  paid  in  private  business  to  executives  charged 
with  similar  functions.  American  administrative  officials,  how- 
ever, receive  far  higher  salaries  than  those  in  England  or  on  the 
Continent  for  similar  work.  But  abroad  there  is  more  fixity 
of  tenure,  a  general  willingness  on  the  part  of  the  municipali- 
ties to  retain  a  competent  administrator,  and  a  contentment  on 
the  part  of  the  administrator  with  his  profession,  which  makes 
for  permanent  tenure.  In  the  United  States  the  term  of  office 
is  short,  the  tenure  uncertain,  the  reward  in  private  busi- 
ness far  higher.  So  much  higher  are  the  salaries  in  private 
business  that  the  voters  would  not  tolerate  similar  salaries  in 
municipal  affairs. 
.  A  much-debated  question  in  the  organization  of  administra- 
tive departments  is  whether  they  shall  be  headed  by  a  single 
commissioner  or  by  a  board.  No  hard  and  fast  rule  can  be 
iThe  Government  of  American  Cities,  pp.  249-250. 


462      STATE  AND  IVIUNICIPAL  GOVERNMENT 


organiza-  laid  dovvn.  Some  types  of  administrative  work  require  the 
partments:  direction  and  supervision  of  a  single  official ;  in  others  a  group 
boards  or  q£  individuals  may  best  represent  public  opinion.^  A  commis- 
sioners sioner  is  obviously  best  adapted  for  departments  like  the  police, 
fire,  and  law  departments,  while  in  other  fields — particularly 
where  racial  and  religious  prejudices  or  traditions  are  involved 
— public  sentiment,  if  not  efficiency,  is  better  satisfied  with  the 
administration  of  a  board.  Thus  public  libraries,  poor  relief, 
and  schools  are  commonly  administered  by  a  board.  If  the 
system  of  partial  renewal  is  applied  to  the  board,  there  is  the 
opportunity  of  insuring  continuity,  which  might  be  sacrificed 
in  the  case  of  a  single  commissioner.  Again,  the  board  system 
has  something  in  its  favor  on  the  score  of  immediate  economy. 
If  the  department  is  headed  by  a  single  commissioner  he  must 
be  paid  an  adequate  salary,  for  he  is  supposed  to  give  his  entire 
time  to  the  administration  of  the  affairs  of  the  department. 
If,  however,  the  administration  is  shared  by  a  board  which 
employs  the  requisite  expert,  the  salary  of  an  executive  is  nom- 
inally saved  to  the  city.  One  of  the  best  examples  of  the  use 
of  a  board  with  an  expert  is  found  in  the  school  boards  of  the 
smaller  and  middle-sized  cities.  It  should  be  emphasized,  how- 
ever, that  the  board  system  is  only  successful  when  the  board 
employs  an  agent  who  is  more  or  less  of  an  expert.  In  such 
cases — as  in  the  case  of  the  board  of  education,  the  board  of 
public  health,  and,  in  some  cities,  the  board  of  public  works — 
the  board  directs  the  formulation  of  the  policies  and  the  expert 
carries  them  out. 

Under  the  old  type  of  mayor-and-council  organization  few^ 
arrangements  were  made  for  a  correlation  of  the  whole  work  of 
departments  ^j^g  various  departments.  It  has  thus  happened  that  the  sewer 
department  in  a  city  has  been  known  to  let  the  contract  for 
the  construction  of  a  sewer  at  the  same  time  that  the  highway 
department  had  begun  to  raise  the  grade  of  the  same  street. 
Under  the  system  of  the  responsible  mayor,  particularly  in 
those  cities  where  the  heads  of  departments  served  as  a  mayor's 
cabinet,  much  more  attention  is  paid  to  the  correlation  of  the 
work  of  the  various  departments.  Yet  even  in  these  cities  much 
^Sec  W.  B.  Munro,  The  Government  of  American  Cities,  pp.  252-257. 


Correlation 
of  adminis- 
trative 


SUBORDINATE  OFFICIALS  AND  EMPLOYEES    463 

remains  to  be  done  along  this  line.  According  to  the  original 
idea  of  the  commission  form  of  government,  this  correlation  was 
provided.  Under  the  city-manager  plan  it  is  not  only  provided 
but  actually  enforced  through  the  supervisory  power  of  the 
city  manager. 

Subordinate  Officials  and  Employees 
The  work  of  an  administrative  department  is  carried  on  not  subordi- 

.  ,,.  T  rr^i         .  nates  in 

by  Its  head  but  by  his  subordmates.^  The  city  treasurer  may  an  adminis- 
be  the  responsible  financial  officer  of  the  city,  but  his  clerks  department 
have  the  actual  handling  of  the  money  and  keep  the  books. 
The  chief  law  officer  depends  to  a  large  degree  upon  his  subordi- 
nates for  drafting  papers,  such  as  contracts,  and  preparing 
opinions  concerning  the  legality  of  a  proposed  measure.  Only 
in  the  smallest  cities  do  the  administrative  officials  perform 
these  functions  themselves,  and  even  in  these  cities  they  are  fre- 
quently assisted  by  subordinates.  The  latter  may  vary  in  tech- 
nical expertness  and  skill,  from  the  city  engineer  and  sewage 
expert  to  the  man  who  digs  ditches  and  the  clerk  who  makes 
out  the  tax  lists.  The  city  is  dependent  for  the  actual  per- 
formance of  its  functions  not  upon  the  heads  of  departments 
but  upon  minor  officials  and  employees. 

The  organization  of  administrative  departments  varies  from  Organiza- 
city  to  city  and  between  departments  in  the  same  city.    In  adminis- 
theory,  at  least,  there  is  at  the  head  of  each  department  an  Je^pa^tment 
officer  or  a  board  who  assumes  all  responsibility  and  who  directs 
the  work  of  the  department.    Its  policy  may  be  determined  by 
the  city  council  or  by  popular  vote,  but,  in  theory  at  least,  the 
head  of  the  department  is  solely  responsible  for  accomplishing 
the  work  of  his  department.     Everywhere  theoretically,  and 
actually  in  the  large  cities,  the  head  of  the  department  is  the 
general  executive,  and  he  should  be  assisted  by  some  deputy  or 
subordinate  possessing  expert  and  technical  skill.    In  the  ab- 
stract this  deputy  furnishes  the  expert  knowledge  and  gives  the 
technical  directions  necessary  in  order  to  put  through  the  work 

iThe  best  brief  treatment  of  this  subject  is  found  in  W.  B.  Munro's 
"The  Government  of  American  Cities"  (3d  ed.),  chap,  xii,  which  gives 
bibliographical  references. 


464      STATE  AND  MUNICIPAL  GOVERNMENT 

of  the  department.  Thus  the  city  engineer  is  responsible  for 
the  general  plans  of  the  engineering  department,  while  subordi- 
nate officials,  like  surveyors  or  draftsmen,  prepare  the  actual 
plans  and  see  that  the  workmen  carry  them  into  effect.  In 
large  departments  there  are  several  such  deputies,  sometimes  of 
coordinate  rank,  but  often  subordinate  to  one  another.  Below 
these  deputies  are  heads  of  bureaus,  supervisors,  or  foremen, 
and  finally  the  actual  working  force  of  the  department  engaged 
in  clerical  or  manual  labor.  Directions  and  orders  ought  to  de- 
scend from  the  head  to  the  workmen  ;  appeal  from  the  workmen 
should  be  to  the  head,  and  the  department  should  be  self- 
contained.  Practically — as  will  be  shown  and  as  common  knowl- 
edge acquaints  us — :the  departments  are  not  self-contained. 
Number  of  The  number  of  persons  who  are  on  the  salary  list  or  pay  rolls 
employees  ^^  ^  large  city  is  enormous.  Professor  IMunro^  has  estimated 
that  8  per  cent  of  the  voting  list  in  New  York  and  12  per  cent 
in  Boston  is  so  accounted  for.  But  these  numbers,  large  as 
they  are,  hardly  show  the  political  influence  of  these  employees. 
To  these  should  be  added  their  relatives  and  friends ;  and,  since 
experience  has  shown  that  municipal  employees  are  generally 
active  in  politics.  Professor  Munro  estimates  that  the  political 
strength  of  municipal  employees  in  large  cities  is  somewhere 
between  one  sixth  and  one  eighth  of  the  entire  electorate.  This 
probably  constitutes  the  largest  single  class  liable  to  bring 
political  influence  to  bear  on  municipal  administration. 
Politics  and  It  is  a  legitimate  function  of  politics  to  control  both  the 
tion  lawmaking  and  law-executing  bodies  of  the  state  or  city  ;  -  first, 

to  determine  what  the  law  shall  be  and,  second,  to  keep  the 
administrative  officers  in  harmony  with  the  lawmaking  officers. 
Where  political  action  goes  beyond  this  and  invades  the  admin- 
istrative field,  it  attempts  a  function  which  does  not  naturally 
belong  to  it  and  produces,  as  experience  has  shown,  disastrous 
results.  Unfortunately  this  is  exactly  the  field  in  which  politics 
has  been  too  often  active  in  municipal  government.  Not  con- 
tent with  determining  the  composition  and  thereby  the  policy 
of  the  city  council,  political  parties  and,  to  a  greater  extent, 

iThc  Government  of  American  Cities,  p.  266. 

^F.  J.  Goodnow,  Politics  and  Administration,  chap.  ii. 


SUBORDINATE  OFFICIALS  AND  EMPLOYEES    465 

political  machines,  bosses,  and  leaders  have  intervened  in  the 
organization  and  function  of  administration.  The  responsibility 
which  the  head  of  a  department  may  properly  be  asked  to  bear 
is  dependent  upon  or  should  be  measured  largely  by  his  author- 
ity. If  his  control  of  his  subordinates  is  weakened  through  the 
possibility  of  political  appeal  and  the  interference  of  the  boss  or 
party  leader,  his  power  and  influence  are  correspondingly  weak- 
ened. This  is  exactly  what  has  happened  again  and  again  in 
municipal  administration.  Deputies  and  subordinates  and  em- 
ployees were  appointed  not  for  reasons  of  ability  or  efficiency 
but  because  of  political  influence.  They  were  retained  on  the 
pay  rolls  not  because  of  their  worth  but  from  some  real  or 
fancied  political  necessity.  The  discipline  and  control  of  the 
head  of  the  department  or  of  his  deputies  were  constantly  being 
weakened  by  the  appeal  to  and  the  intervention  of  some  politi- 
cal leader.  To  say  nothing  of  corruption,  there  is  an  almost 
incalculable  cost  to  the  city  for  incompetence  and  inefficiency 
resulting  from  the  improper  and  unjustifiable  commingling  of 
politics  and  administration. 

One  attempt  to  remedy  this  evil  has  been  along  the  lines  Methods  of 
of  divorcing  city  government  from  party  organizations.  Mem-  J^ntT^' 
bers  of  the  council  and  city  officials  were  nominated  by  petition  '')  no°- 

•'  ^    r-  partisan 

or  at  nonpartisan  primaries  and  elected  without  the  party  pontics 
designation.  It  was  hoped  that  this  would  free  municipal  ad- 
ministration from  interference  by  partisan  organizations.  But 
the  nonpartisan  character  of  the  officers  so  elected  was  nominal 
rather  than  real,  and  under  other  names  and  by  different  means 
the  same  influences  were  at  work. 

To  weaken  the  influence  of  party  politics,  particularly  as  it  (2)  changes 
was  manifested  in  the  mayor-and-council  type  of  government,  structure  of 
the  powers  of  the  mayor  were  increased  at  the  expense  of  the  grnment 
council.    He  was  allowed  to  appoint  the  heads  of  departments 
without  confirmation  by  the  council,  and,  in  theory  at  least,  the 
heads  of  these  departments  were  responsible  solely  to  him.  This 
was  a  step  in  advance,  but  when  the  council  was  denied  a  legal 
method  of  control  over  the  department  heads,  it  too  often  sought 
extra-legal  influence,  and  even  in  departments  of  the  type  just 
described  party  politics  played  a  great  part  in  administration. 


466     STATE  AND  MUNICIPAL  GOVERNMENT 

(3)  commis-  The  commission  system  was  a  frank  admission  that  poHtics 
^on^govern-  ^^^  administration  could  not  be  kept  separate,  and  each  mem- 
ber of  the  commission  which  corresponds  to  the  city  council 
headed  an  administrative  department.  The  theory  was  that  a 
commission  would  function  as  a  group  of  heads  of  depart- 
ments, yet  actually  experience  too  often  shows  that  the  com- 
missioners, like  the  old  city  council,  intervened  for  political 
reasons  in  the  administration  of  the  department  of  a  single 

•  commissioner. 

(4)  City  The  city-manager  type  of  municipal  government  attempts  a 
manager       radical  divorce  of  administration  from  politics.    The  council 

controls  by  means  of  determining  the  policy,  making  the  appro- 
priations, and  choosing  the  manager.  Beyond  that  the  admin- 
istrative officers — whether  the  city  manager  or  his  subordinates 
— are  in  theory  at  least  given  a  free  hand.  Whether  they 
will  continue  to  be  free  from  improper  political  influence  is 
a  question,  and  it  may  be  that  even  under  the  city-manager 
form,  as  under  the  responsible-mayor  type,  the  members  of 
the  city  council  will  seek  extra-legal  methods  of  influencing 
the  administration. 
Selection  of  Until  the  last  quarter  of  the  nineteenth  century  there  were 
^daifand  ^^^^  principles  determining  the  selection  of  municipal  officials 
employees  ^j^^j  employees.  In  general,  party  regularity  and  party  neces- 
sities governed  the  choice.  The  spoils  system  was  carried  even 
further  in  municipal  government  than  in  the  state  and  nation. 
With  officials  and  employees  so  selected,  the  improper  political 
influences  just  described  dominated  all  departments.  The  great 
problem  in  bettering  municipal  administration  lies  in  the  im- 
provement of  the  city  officials  and  employees.  The  greatest 
step  taken  toward  its  direction  has  been  to  adapt  the  principles 
of  civil-service  reform  to  city  appointments. 
Types  of  In  general  there  are  three  types  of  municipal  civil-service 

ci  vil-sGrvicc  •      • 

commis-       commissions :   In  the  first  the  commission  is  selected  by  the 
sions  mayor  or  city  council  and  apj^lies  the  ordinary  tests  and  rules 

to  municipal  appointments.  The  great  disadvantage  of  this 
system  is  that  a  spoilsman  mayor  may  appoint  a  compliant 
commission,  which,  under  the  guise  of  applying  tests  and  rules, 
will  enable  the  organization  to  fill  the  municipal  offices  with 


SUBORDINATE  OFFICIALS  AND  EMPLOYEES    467 

appointees  under  the  protection  of  the  civil-service  system. 
Examples  of  this  type  are  found  in  Philadelphia  and  Chicago. 
In  the  cities  of  New  York  State  the  mayor  appoints  the  civil- 
service  commissions,  whose  work  is  supervised  by  the  state 
civil-service  commission  appointed  by  the  governor.  This  plan 
attempts  to  combine  local  administration  with  state  super- 
vision. Unfortunately  the  supervision  given  by  the  state  com- 
mission in  New  York  State  is  not  sufficiently  active  or  severe 
in  dealing  with  evasions. 

Since  1884  the  cities  in  Massachusetts  have  been  under  a  TheMassa- 
state  civil-service  commissioner.  This  commissioner  and  his  p^T"^ 
department  prepare  examinations  and  tests  for  all  offices  and 
employees  which  are  subject  to  the  law.  The  examinations  are 
administered  and  corrected  by  state  authorities,  and  the  results 
certified  to  the  cities.  The  advantage  of  this  system  is  that  it 
removes  entirely  from  the  field  of  local  politics  the  appoint- 
ment and  control  of  the  examining  commission.  It  is  more 
economical  in  that  it  serves  the  entire  state  and  saves  the  dif- 
ferent cities  the  expense  of  maintaining  their  own  commissions. 
It  is,  however,  contrary  to  the  principles  of  home  rule,  yet  the 
invasion  of  this  field  is  so  slight  and  the  results  obtained  so 
excellent  that  the  actual  advantages  seem  greatly  to  outweigh 
the  theoretical  disadvantages. 

The  principles  of  municipal  civil  service  are  similar  to  those  Principles  of 
in  the  state  and  national  governments.    Appointments  are  com-  ""n  se^rtice 
petitive,  dependent  upon  passing  certain  tests;  removals  can 
be  made  only  for  cause;   and  partisan  activity  and  partisan 
assessments  are  prohibited.    Civil-service  reform  has  been  most 
sharply  criticized  on  the  ground  that  the  tests  were  too  academic 
and  were   inadequate  guides   of  administrative   or   executive 
ability.    That  some  of  the  earlier  examinations  were  open  to 
this  objection  may  be  admitted,  but  the  modern  method  of     . 
combining  a  written  examination  with  a  physical  test  and,  as 
in  some  cities,  posting  the  names  of  the  candidates  and  asking 
for  recommendations  or  criticisms  has  done  much  to  remove 
these  objections.    It  is  true  that  neither  written  nor  physical 
examinations  are  complete  indications  of  the  executive  ability 
of  a  deputy  in  an  administrative  department  or  of  the  bravery 


468     STATE  AND  MUNICIPAL  GOVERNMENT 


Promotion 


Dismissal 


Pensions 


and  resourcefulness  of  a  policeman,  but  they  furnish  evidence 
of  such  characteristics.  Although  the  competitive  system  may 
not  always  produce  the  best  type  of  officials  and  employees, 
it  at  least  keeps  out  the  worst. 

Logically  promotion,  like  appointment,  should  go  by  merit, 
and  this  should  be  determined  by  tests  kept  in  the  various 
departments.  This  system  is  too  seldom  adopted ;  promotions 
are  made  either  by  favor  or  as  the  result  of  long  tenure. 

Misfits  and  improper  appointments  may  be  made  under  the 
civil-service  competitions  as  under  any  other  plan,  and  provi- 
sion must  be  made  for  the  removal  of  such  appointees.  As  a 
rule,  all  the  law  requires  is  that  the  dismissing  officer  shall  show 
cause  for  the  removal  of  a  civil-service  appointee,  although 
in  some  instances  a  public  hearing  is  necessary.  In  the  vast 
majority  of  cases  the  removal  is  sustained.  Yet  the  tenure  of 
officers  and  employees  appointed  under  the  civil-service  system 
is  more  secure  than  the  mere  reading  of  the  law  would  show. 
The  heads  of  departments  do  not  relish  public  hearings,  and 
the  appointee  can  frequently  bring  to  his  aid  a  considerable 
section  of  public  opinion  which  will  make  it  unpleasant,  if  not 
politically  unwise,  to  remove  even  an  inefficient  officer. 

Few  American  cities  provide  pensions  for  their  employees, 
and,  even  in  those  cities  which  do,  the  system  is  ordinarily 
confined  to  school-teachers,  policemen,  and  firemen.  The  cities 
are  placed  between  the  horns  of  a  most  unpleasant  dilemma. 
Public  opinion  is  quite  ready  to  condone  the  carrying  of  super- 
annuated employees  on  the  city  pay  roll  and  would  probably 
condemn  a  wholesale  discharge  of  faithful  employees  who  have 
passed  the  age  of  efficient  service,  with  the  result  that  the 
work  of  the  city  is  slowed  up.  Certain  positions,  like  those  on 
the  street-cleaning  department,  are  sometimes  considered  as  a 
measure  of  outdoor  poor  relief,  with  little  regard  to  the  best 
interests  of  the  city ;  the  younger  and  more  efficient  employees 
have  to  follow  the  pace  set  by  the  older.  On  the  other  hand, 
the  thought  of  saddling  a  city  with  a  pension  system  for  all  its 
employees  does  not  appeal  to  the  taxpayers.  In  general,  the  city 
laborers  are  in  usual  times  paid  higher  wages  than  is  ordinary 
unskilled  labor,  and  for  the  state  or  municipality  to  establish 


SUBORDINATE  OFFICIALS  AND  EMPLOYEES    469 

a  pension  system  in  behalf  of  such  a  favored  class  and  to 
neglect  the  more  numerous  and  less  fortunate  seems  unfair. 

Until  recently  the  question  of  the  organization  of  city  em-  Labor  unions 
ployees  has  not  been  vital.  Associations  for  self-help  and  im-  empio'yees 
provement  among  the  employees  were  encouraged,  and  even 
organizations  to  increase  pay  were  tolerated.  Recently,  how- 
ever, these  organizations  have  attempted  to  affiliate  with  the 
American  Federation  of  Labor  and  to  utilize  the  right  to  strike 
and  sometimes  to  threaten  a  sympathetic  strike  in  order  to 
enforce  their  demands  or  the  demands  of  their  associates.  This 
was  brought  in  a  startling  manner  to  the  public  attention  in 
the  Boston  police  strike  of  1919,  where  it  was  shown  that  cer- 
tain classes  of  city  employees — in  this  instance  the  police — 
could  not  with  due  regard  to  the  safety  of  the  community  be 
allowed  to  refuse  to  perform  their  duties.  In  like  manner  the 
firemen  of  a  city,  the  employees  of  the  city's  waterworks,  and 
other  bodies  of  employees  may  form  a  class  which  because  of 
the  functions  they  perform  may  be  debarred  from  the  right  to 
strike — a  right  which  the  courts  have  upheld  in  other  employ- 
ment. The  question  is  by  no  means  an  easy  one  to  decide, 
but  analogies  may  be  found  in  military  organizations,  where  a 
soldier  during  his  term  of  enlistment  assumes  additional  respon- 
sibilities and  foregoes  rights  which  are  ordinarily  exercised  by 
other  classes  of  citizens.  Thus  it  might  reasonably  be  required 
of  certain  classes  of  municipal  employees  that  they  forego  the 
right  to  strike  because  of  the  nature  of  their  work. 


CHAPTER  XXVII 

MUNICIPAL  ADMINISTRATION.    SAFETY 

The  Administration  of  the  Police,  Fire,  and 
Health  Departments 

I.    The  Police 

Definition  The  phrasc  "police  power"  is  extremely  elastic  and  difficult 
""police""  to  define  comprehensively.  In  the  widest  sense  it  includes  all 
the  powers  of  government ;  in  a  narrower  sense  it  has  been 
used  to  include  those  powers  which  deal  with  internal  adminis- 
tration apart  from  finance,  military,  judicial,  or  foreign  affairs.^ 
In  the  ordinary  use  of  the  term  in  municipal  government, 
"police"  has  come  to  designate  one  agency  for  the  prevention 
of  disorder  and  crime  and  the  suppression  of  violations  of  law. 
Even  in  this  restricted  sense  the  police  functions  are  of  three 
sorts:  legislative  (that  is,  the  functions  exercised  by  the  city 
council  in  passing  ordinances),  judicial  (that  is,  the  enforce- 
ment of  police  laws  and  ordinances  by  the  police-court  justices), 
and,  finally,  the  protection  of  public  safety  and  the  prevention 
of  the  violation  of  law  which  is  performed  by  the  police  officers. 
The  discussion  in  this  chapter  deals  largely  with  the  so-called 
administrative  police,  or  the  organization  and  functions  of  the 
police  department.  It  should  be  remembered,  however,  that 
these  functions  and  this  organization  are  conditioned  and  deter- 
mined both  by  the  legislative  police  power,  which  is  exercised 
by  the  state  legislature  or  the  municipal  council,  and  by  the 
judicial  police  power,  which  the  judges  exercise  in  dealing  with 
the  offenders  brought  before  them  by  the  administrative  police. 
The  functions  and  duties  of  the  police  department  are  mani- 
fold.   Originally   it   was  little  more  than  to  prevent  disorder 

1  For  a  brief  discussion  of  (lie  use  of  tiie  word  "police"  see  Goodnow 
and  Bates,  Municipal  Government,  pp.  258-260. 

470 


SAFETY  471 

and  crime.    But  with  the  growth  of  the  cities  and  (particularly  The  func- 
in   America)    with   the   attempt   to   regulate    minutely   many  dutles^of 
things  by  ordinance  their  duties  have  greatly  increased.    More-  ^^^  p°^'*^^ 
over,  in  modern  times  the  functions  of  the  police  have  extended 
from  merely  that  of  repression  to  prevention,  until  today  they 
are  charged  with  a   variety   of  duties   only   vaguely  under- 
stood by  the  average  citizen.^     A  good  idea  of  these  duties 
may  be  gathered  from  the  charter  of  Greater  New  York,  which 
prescribes  the  following  duties :  - 

It  is  hereby  made  the  duty  of  the  police  department  and  force,  at 
all  times  of  day  and  night,  and  the  members  of  such  force  are  hereby 
thereunto  empowered,  to  preserve  the  public  peace,  prevent  crime, 
detect  and  arrest  offenders,  suppress  riots,  mobs  and  insurrections, 
disperse  unlawful  or  dangerous  assemblages,  and  assemblages  which 
obstruct  the  free  passage  of  public  streets,  sidewalks,  parks  and 
places ;  protect  the  rights  of  persons  and  property,  guard  the  public 
health,  preserve  order  at  elections  and  all  public  meetings  and  assem- 
blages ;  regulate,  direct,  control,  restrict,  and  direct  the  movement 
of  all  teams,  horses,  carts,  wagons,  automobiles  and  all  other  vehicles 
in  streets,  bridges,  squares,  parks,  and  public  places,  for  the  facilita- 
tion of  traffic  and  the  convenience  of  the  public  as  well  as  the  proper 
protection  of  human  life  and  health,  and  to  that  end  the  police 
commissioner  shall  make  such  rules  and  regulations  for  the  con- 
duct of  vehicular  traffic  in  the  use  of  the  public  streets,  squares, 
and  avenues  as  he  may  deem  necessary,  the  violation  of  which  rules 
and  regulations  shall  be  a  misdemeanor  punishable  by  not  less  than 
two  or  more  than  thirty  days'  imprisonment,  or  by  a  fine  of  not  less 
than  five  or  more  than  fifty  dollars,  or  both ;  remove  all  nuisances 
in  the  public  streets,  parks,  and  highways ;  arrest  all  street  mendi- 
cants and  beggars ;  provide  proper  police  attendance  at  fires ;  assist, 

lA  recent  and  authoritative  book  on  the  American  police  is  Ray- 
mond B.  Fosdick's  "American  Police  System."  In  connection  with  this, 
"European  Police  Systems,"  by  the  same  author,  should  also  be  studied. 
L.  F.  Fuld's  "Police  .A.dministration"  is  a  critical  study  of  police  organi- 
zations in  the  United  States  and  abroad.  William  McAdoo,  Guarding  a 
Great  City,  describes  the  organization  and  operation  of  the  New  York 
police  system,  of  which  he  was  commissioner.  W.  B.  Munro,  Principles 
and  Methods  of  Municipal  Administration,  chap,  vii,  Goodnow  and 
Bates,  Municipal  Government,  chap,  xi,  and  J.  A.  Fairlie,  Municipal 
Administration,  chap,  viii,  give  shorter  accounts  of  the  same  problems. 

-Sect.  315. 


472      STATE  AND  MUNICIPAL  GOVERNMENT 


European 

and 

American 

conceptions 

of  police 

functions 


advise,  and  protect  emigrants,  strangers,  and  travelers  in  public 
streets,  at  steamboat  and  ship  landings,  and  at  railroad  stations ; 
carefully  observe  and  inspect  all  places  of  public  amusement,  all 
places  of  business  having  excise  or  other  licenses  to  carry  on  any 
business ;  all  houses  of  ill-fame  or  prostitution,  and  houses  where 
common  prostitutes  resort  or  reside ;  all  lottery  ofifices,  poHcy  shops, 
and  places  where  lottery  tickets  or  lottery  policies  are  sold  or  offered 
for  sale ;  all  gambling-houses,  cock-pits,  rat-pits,  and  public  common 
dance-houses,  and  to  repress  and  restrain  all  unlawful  and  disorderly 
conduct  or  practices  therein ;  enforce  and  prevent  the  violation  of  all 
laws  and  ordinances  in  force  in  said  city ;  and  for  these  purposes,  to 
arrest  all  persons  guilty  of  violating  any  law  or  ordinance  for  the 
suppression  or  punishment  of  crimes  or  offenses. 

The  duties  just  described  are  those  generally  performed  by 
the  police  force  the  world  over.  In  Europe,  moreover,  the 
police  have  the  additional  function  of  exercising  close  surveil- 
lance over  both  the  inhabitants  and  the  visitors  of  a  city.  In 
one  sense  this  increases  their  duties,  but  from  another  point 
of  view  it  makes  the  detection  of  criminals  easier,  since  through 
the  elaborate  system  of  registration  the  police  of  the  European 
countries  may  put  their  hands  upon  almost  anyone  at  almost 
all  times.  In  America  the  police  have  a  more  difficult  task 
than  is  assigned  to  the  police  in  Europe.  This  arises  from  the 
failure  on  the  part  of  the  legislative  bodies  in  the  United  States 
to  distinguish  clearly  between  vice  and  crime.  This  is  well- 
expressed  in  the  following  words : 

It  is  too  commonly  believed  in  this  country  that  once  we  have 
determined  that  an  action  is  vicious,  it  necessarily  follows  that  such 
action  should  be  criminally  punished.  Whether  an  action  is  believed 
to  be  vicious  or  not  depends,  of  course,  upon  a  variety  of  things.  But 
whatever  the  criterion  of  morality  or  immorality  may  be,  the  public 
belief  in  its  immoral  character  is  the  result  of  the  standards,  some- 
what subjective  in  character,  of  the  majority  of  individual  men. 
Now,  whether  an  act  shall  be  a  crime  or  not  should  be  (.lependent 
simply  upon  the  ciucstion.  Is  it  socially  expedient  to  attempt  to 
punish  such  act  criminally  ?  The  morality  of  the  act  has  little,  if  any- 
thing, to  do  with  thf  matter.  An  action  may,  from  the  viewpoint  of 
subjective  individual  morality,  be  absolutely  innocent,  and  yet  it  may 
properly  be  a  crime.    Thus  from  the  individualistic  moral  point  of 


SAFETY  473 

view,  it  is  an  innocent  action  for  a  man  to  drive  on  either  side  of  a 
city  street.  Yet  the  government  may  properly  determine  quite  arbi- 
trarily that  it  shall  be  a  crime  to  drive  on  either  the  left  or  the  right 
side  of  the  street.  Again,  an  action  may  be  from  the  viewpoint  of 
individualistic  morality  most  vicious  in  character.  But  its  vicious- 
ness  may  not  result  in  making  it  a  crime.  Mere  sensual  indulgence  in 
any  form  is  vicious.  But  the  mere  fact  of  its  viciousness  is  not  sufifi- 
cient  to  justify  the  government  in  making  it  criminal. 

The  only  justification  for  punishing  an  act  criminally  is  that  the 
welfare  of  society  requires  that  it  should  be  so  punished.  Now  it  may 
well  be  that  the  difficulty  of  punishing  some  particular  act  may  be  so 
great,  and  the  procedure  necessary  to  secure  its  punishment  may  be 
so  arbitrary,  that  the  social  welfare  is  less  subserved  by  the  attempt 
to  punish  it  than  it  is  by  leaving  it  alone,  no  matter  how  vicious  it 
may  be.  By  letting  it  alone  the  people  in  their  governmental  organ- 
ization do  not  countenance  it.  They  simply  declare  it  is  inexpedient 
to  attempt  to  punish  it  criminally.  Take,  for  example,  the  case  of 
gambling.  The  state  may  determine  that  it  is  inexpedient  to  make  mere 
gambHng  an  offense.  This  is  the  general  rule  in  the  United  States  as 
to  private  gambhng.  No  one  commits  a  crime  in  gambling.  The  state 
does,  however,  say  that  it  will  not  permit  its  power  to  be  exercised  to 
recover  a  gambling  debt.  The  state  often  says  also  that  keeping  a 
public  gambling  table  is  a  crime.  It  does  so  because  it  believes,  or 
the  majority  of  the  people  believe,  that  keeping  such  a  gambling 
table  has  such  bad  effects  on  society  that  it  may  properly  be  made  a 
crime.  But  suppose,  after  numerous  and  persistent  efforts  to  sup- 
press the  keeping  of  public  gambling  tables  the  state  came  to  the  con- 
clusion that  these  attempts  led,  through  the  corruption  of  the  police 
force  and  the  arbitrary  invasion  of  the  right  of  personal  liberty,  to  a 
greater  social  harm  than  the  keeping  of  gambling  tables  in  such  a  way 
that  no  scandal  or  disorder  was  caused  thereby — suppose,  then,  that 
it  ceased  to  attempt  to  punish  criminally  the  mere  keeping  of  such  a 
table,  it  could  not  fairly  be  said  that  it  countenanced  gambling.^ 

The  difficulties  arising  from  this  confusion  of  vice  and  crime  Difficulties 
are  accentuated  in  the  United  States  by  the  diverse  character  ponce  ad- 
of  the  city  populations.    In  European  cities  the  populations  are  ""^istration 
more  homogeneous,  and  public  opinion  is  more  generally  agreed 
on  standards  of  conduct.     In  the  large  cities  of  the  United 
States,  as  has  been  seen,  a  large  percentage  of  the  population  is 

iGoodnow  and  Bates,  Municipal  Government,  pp.  291-292. 


474     STATE  AND  MUNICIPAL  GOVERNMENT 

foreign-born  and  a  still  greater  percentage  comes  of  foreign- 
born  parents.  These  groups  are  by  no  means  agreed  as  to  the 
standards  of  moral  conduct,  particularly  in  the  field  of  personal 
behavior.  This  divergence  of  standards  is  still  further  em- 
phasized when  it  is  remembered  that  many  of  the  laws  regu- 
lating conduct  are  framed  not  by  the  lawmaking  body  of  the 
city  council,  but  are  imposed  upon  the  city  by  the  state  legis- 
lature, in  which  the  rural  element  has  a  large  and  sometimes  a 
decisive  voice.  To  add  to  these  difficulties,  party  politics  all 
too  frequently  control  to  a  greater  or  less  extent  police  action 
and  sometimes  the  enforcement  of  municipal  ordinances  and 
state  laws.  Sometimes  certain  interests  acting  through  party 
organizations  obtain  police  protection  or  immunity  from  police 
prosecution  for  their  own  advantage  contrary  to  the  formal 
law.  Thus,  in  the  United  States  the  organized  police  force  of 
a  great  city  is  not  infrequently  called  upon  to  enforce  laws 
which  a  large  part  of  the  population  opposes  and  to  regulate 
personal  conduct  according  to  standards  which  are  not  accepted. 
Moreover,  their  action  is  constantly  being  hampered  by  the 
influence  which  political  parties  and  leaders  are  able  to  wield. 
Develop-  During  the  colonial  era  the  police  functions  were  usually  in- 

poiice  in  trusted  to  Unpaid  watchmen  and  constables.  The  householders 
states**^^  in  some  places  were  required  either  to  perform  watch  duty  or 
to  furnish  a  substitute,  and  even  until  the  middle  of  the  nine- 
teenth century  there  were  few  paid  officials  in  any  American 
city.^  In  1844  New  York  provided  for  a  single  body  of  police 
consisting  of  eight  hundred  men  under  a  chief  appointed  by 
the  mayor  with  the  consent  of  the  council,  with  captains  and 
officers  appointed  annually  from  the  wards.  This  was  altered 
in  1853,  and  the  mayor,  recorder,  and  city  judge  were  estab- 
lished as  a  board  of  police  commissioners  with  full  power  to 
appoint  the  members  of  the  force,  who  held  their  positions 
during  good  behavior.  Other  cities  followed  the  example  of 
New  York:  in  1850  Philadelphia  organized  a  police  force  of 
eight  hundred ;  in  1854  the  Boston  police  force  was  established, 
and   in    1857   that  of   Baltimore.     The  organization   and   the 

'J.  A.  Fairlie,  Municipal  Administration,  pp.  132-134;  Goodnow  and 
Bates,  Munici[)al  Gitviinnniit,  jip.  280-282. 


SAFETY  475 

uniforms  were  largely  copied  from  the  London  system,  and  the 
movement  rapidly  extended  to  all  the  principal  cities  in  the 
United  States.  By  and  large  the  small  cities  do  not  have  a  force 
proportionately  as  large  as  the  larger  cities,  nor  is  such  a  force 
necessary.  The  need  for  police  administration  increases  progres- 
sively with  the  size  of  the  city.  The  largest  cities  in  the  United 
States,  however,  have  smaller  police  forces  in  proportion  to  their 
population  than  do  the  cities  of  Great  Britain  or  the  Continent.^ 

Until  the  middle  of  the  nineteenth  century  the  city  police  state  versus 

.  IT,      ''*<^^'  control 

were  considered  purely  local  officers  and  entirely  under  the  of  the  police 
control  of  the  city  authorities,  even  though  the  courts  have 
held  that  "police  officers  can  in  no  sense  be  regarded  as  agents 
or  servants  of  the  city.  Their  duties  are  of  a  public  nature." - 
The  decline  of  the  city  councils  and  their  increasing  inefficiency 
led  the  state  to  undertake  in  many  cities  the  supervision  if  not 
the  actual  control  of  the  police  force.  Thus,  at  one  time  or 
another  the  control  of  the  city  police  was  taken  entirely  out  of 
the  hands  of  the  city  government  in  Baltimore,  Boston,  Chicago, 
Cleveland,  Detroit,  New  York,  St.  Louis,  and  many  smaller 
cities.  Of  the  largest  cities  only  Baltimore,  Boston,  and  St. 
Louis  are  still  subject  to  state  control  in  police  affairs.  There 
are  many  arguments  in  favor  of  the  state  control  of  police. 
The  first  and  most  obvious  is  that  the  police  officials  are 
engaged  in  enforcing  state  laws  and  are  regarded  by  the  courts 
as  state  officials.  A  corrupt  or  inefficient  police  force  may 
render  nugatory  a  state  law  in  a  large  city.  Again,  it  has  been 
claimed,  with  considerable  reason,  that  state  administration  is 
more  efficient  and  less  corrupt  than  municipal  administration. 
This  is  true  in  some  states,  but  its  truth  is  by  no  means  uni- 
versal. It  must  be  admitted,  however,  that  in  the  three  large 
cities  now  under  state  control  the  police  administration  is  far 
more  efficient  than  it  was  in  the  days  when  the  city  council  had 
full  authority.  State  control,  however,  is  not  popular.  It  vio- 
lates the  principle  of  home  rule  for  cities ;  it  is  ordinarily  more 
expensive;   and  the  fact  that  the  preventive  and   repressive 

ipor  table  see  W.  B.  Munro,  Principles  and  Methods  of  Municipal 
Administration,  p.  282. 

-Buttrick  V.  City  of  Lowell,  i  Allen  (Mass.)  172  (1861). 


476     STATE  AND  MUNICIPAL  GOVERNMENT 


(2)  The  com- 
missioner 


The  chief  of 

police 


functions  of  the  police  are  beyond  the  authority  of  the  city 
council,  which  is  called  upon  to  appropriate  money  for  their 
support,  not  infrequently  rouses  bitter  opposition.  Although 
there  is  little  evidence  which  would  point  to  the  extension  of 
state  control  of  police  forces,  it  has  been  seen  that  there  is  a 
decided  tendency  to  establish  state  police  and  to  appoint  many 
state  officers  exercising  police  functions  within  the  cities.^ 

There  are  two  main  types  of  police  organization  in  cities  in 
the  United  States — the  board  and  a  single  commissioner.  At 
one  time  the  board  organization  was  extremely  popular,  but 
little  can  be  said  in  its  favor.  Among  the  politicians  it  still 
retains  some  of  its  popularity,  for  it  gives  the  opportunity  to 
divide  or  share  the  patronage  and  to  make  political  influence 
effective.  This  is  true  especially  in  the  so-called  bipartisan 
board.  If  in  any  department  the  city  government  demands 
unity  of  authority  and  dispatch,  it  is  in  the  police  department. 
Hence  the  general  tendency  is  toward  a  police  commissioner 
and  away  from  a  board.  The  most  successful  commissioners 
have  not  been  drawn  from  the  police  department  itself,  but 
have  been  laymen  possessed  of  considerable  administrative  and 
executive  ability  who  have  brought  to  their  task  a  fresh  point 
of  view.  This  is  to  be  expected  when  it  is  remembered  that 
the  functions  and  duties  of  the  police  are  constantly  being 
extended.  Professional  control  is  found  in  the  smaller  cities, 
which  have  not  adopted  the  commission  form  of  government. 
There  the  direction  of  the  police  is  nominally  under  a  com- 
mittee of  the  city  council,  but  the  actual  control  is  in  the 
chief  of  police. 

The  chief  of  police  is  practically  always  a  professional, 
usually  promoted  from  the  ranks,  and  in  many  cities  under 
the  regulations  of  the  civil-service  commission.  In  the  largest 
cities  he  is  the  means  of  communication  between  the  commis- 
sioner or  board  and  the  lesser  members  of  the  department.  He 
is  not  a  policy-determining  official,  but  his  duties  are  mainly 
executive  and  administrative,  and  he  is  responsible  for  the 
discipline  and  efficiency  of  the  force.  In  smaller  cities,  as  has 
been  pointed  out,  the  chief  of  police  frequently  is  called  upon 

^Sce  page  171. 


SAFETY  477 

to  exercise  the  functions  of  the  commission,  for  which  he  is 
too  often  unqualified,  because  he  brings  to  his  task  the  point 
of  view  of  the  professional  officer. 

In  practically  every  city  there  is  a  police  captain,  who  has  other  police 
charge  of  the  police  station  during  certain  hours  of  the  day  d)  poiic'e 
and  is  responsible  for  the  discipline  of  the  patrolmen  in  his  ^^^pt^'is 
precinct.    His  position  is  extremely  important,  as  he  not  only 
gives  the  tone  to   the   force  in  his  district  but  also   is  the 
person  before  whom  as  a  rule  first  offenders  are  brought.    He 
should  have  great  firmness  in  dealing  with  his  subordinates 
and  equal  firmness  and  discretion  in  directing  the  subordinates 
in  their  dealings  with  the  public.    In  the  largest  cities  the  pre- 
cincts, with  their  station  houses  and  captains,  are  frequently 
grouped  into  inspection  districts  under  the  supervision  of  a  (2)  The 
higher  officer  known  as  the  inspector,  who  is  the  medium  of  '"^^^'^  ""^ 
communication  between  the  commissioner,  the  chief  of  police, 
and  the  precincts  and  who  supervises  and  overlooks  the  police 
work  in  his  district.    In  many  cities  there  is  a  grade  below  the 
captain — the  police  lieutenants,  who  take  charge  of  the  station  (3)  Lieu- 

.  tenants 

during  the  captam  s  absence  and  share  with  him  the  respon- 
sibility for  the  administration  of  the  district.  At  each  station, 
in  most  cities,  there  are  several  police  sergeants.    Where  there  (4)  ser- 

'  geants 

are  no  lieutenants  the  sergeants  take  charge  during  the  cap- 
tain's absence.  In  the  larger  cities,  however,  their  duties  are 
chiefly  on  the  streets,  supervising  the  work  of  the  patrolmen 
and  seeing  that  their  precinct  is  properly  policed. 

The  mainstay  of  any  police  department  consists  of  the  (5)^Patroi- 
patrolmen — the  officers  on  the  streets.  They  are  the  police 
officials  with  whom  the  general  public  comes  in  contact,  since 
in  many  instances  they  are  the  only  representatives  of  the 
government  whom  large  classes  of  the  population  know.  In 
many  cases  their  word  is  law.  Their  duties,  as  has  been  seen, 
are  manifold  and  require  great  tact,  courage,  and  wisdom  in 
their  performance.  Not  infrequently  a  skillful  patrolman  can 
change  the  whole  tone  of  a  block  or  section  of  the  city  by  his 
action.  In  most  cities  the  patrolmen  are  now  appointed  as  the 
result  of  competitive  examinations  and  hold  office  during  good 
behavior.  These  competitive  examinations  have  frequently  been 


men 


478      STATE  AND  MUNICIPAL  GOVERNMENT 

criticized  as  poor  tests  of  the  characteristics  most  needed  in 
policemen ;  that  is,  courage,  discretion,  cool-headedness.  Few 
of  these  quahties  can  be  ascertained  by  written  examinations, 
but  when  these  are  supplemented,  as  is  frequently  the  case, 
by  rigorous  physical  examinations  the  most  unfit  applicants 
can  be  winnowed  out.  The  civil-service  examinations  do  pre- 
vent the  old  type  of  inefficient  political  appointees  and  in  many 
instances  have  given  a  splendid  force  of  men.  The  tenure  of 
the  police  officer  is  generally  during  good  behavior,  and  since 
he  is  under  the  protection  of  the  civil-service  regulations  he 
can  be  removed  only  for  cause,  which  in  some  cities^  must  be 
capable  of  judicial  proof.  But  in  many  cities  he  is  removable 
by  the  appointing  power  on  a  hearing.  Promotion  in  many  police 
departments  depends  upon  competitive  examinations  set  by  the 
civil-service  commission  coupled  with  the  officer's  record.  This 
department  is  one  of  the  few  in  city  administration  for  which 
pensions  have  been  provided.  Thus,  in  many  cities  the  policemen 
— in  distinction  from  the  employees  of  other  departments — enter 
upon  a  career  which  provides  for  promotion  according  to  merit, 
with  increasing  compensation,  and  a  pension  upon  retirement. 
Police  On  the  Continent  and  in  London  special  schools   for  the 

training  of  policemen  are  established,  and  on  the  Continent 
the  force  is  generally  recruited  from  the  petty  officers  of  the 
army.  In  London  the  effort  is  made  to  obtain  the  recruits 
from  the  country.  Many  American  cities  have  a  training 
course  for  police  recruits,  and  New  York  maintains  a  regular 
school  similar  to  those  abroad. 
Expenditure  In  the  citics  of  ovcr  30,000  population  the  expenditure  on 
departments  tl^c  police  departments  in  1919  was  $80,917,027.  This  amount 
was  exceeded  only  by  the  amount  spent  for  schools.  The  pcr- 
capita  cost  of  the  police  departments  of  these  cities  was 
$2.33.  Cities  having  a  population  of  over  500,000  expended 
$44,699,180,  or  $3  per  capita.  Of  these  cities,  as  might  be 
expected.  New  York  spent  the  greatest  amount — $18,115,948. 
But  Boston,  which  expended  only  $2,768,949,  had  the  highest 
per-capita  expense  of  all  ($3.75).  The  smallest  amount  ex- 
pended was  by  Los  Angeles  ($1,067,779),  and  the  smallest 
iln  New  York,  for  example. 


SAFETY  479 

per-capita  expense  was  in  Cleveland  (.I?  1.79).  In  cities  having 
a  population  of  between  300,000  and  500,000  Buffalo  spent  the 
largest  amount  ($1,566,912).  It  also  had  the  highest  per- 
capita  expense  ($3.15).  The  smallest  cost  was  in  New  Orleans 
($518,394),  which  also  had  the  smallest  per-capita  expense.^ 

2.    The  Fire  Department 

The  loss  in  lives  and  property  as  the  result  of  fire  is  enormous  Fire  losses 
in  the  United  States.-    It  is  estimated  that  in  the  ten  years  united 
between  1909  and  19 19  more  than  $2,500,000,000  worth  of  ^*^*^® 
property  was   destroyed   by   fire;    while   in   New   York   City 
alone,  during  the  same  period,  more  than  $100,000,000  worth 
was  so  destroyed.    This  loss  of  property  is  sheer  waste,  which 
falls  not  simply  upon  the  owner  of  the  property  but  is  dis- 
tributed throughout  the  community  and  shared  by  everyone 
living  in  it.    The  loss  of  life  is  also  appalling."    It  is  estimated 
that  between  the  years  1906  and  19 16  thirty  thousand  people 
perished  and   nearly  twice  as  many  were  seriously  maimed. 
Not  only  are  the  lire  losses  enormous  in  total,  but  they  are 
greater  per  capita  in  the  United  States  as  a  whole  than  in  any 
other  country,  and  the  per-capita  loss  in  cities  is  greater  in  the 
United  States  than  in  European  cities.*    It  is  thus  evident  that 

iSee  Department  of  Commerce,  Bureau  of  the  Census,  Financial  Sta- 
tistics of  Cities  (1919),  p.  204. 

-W.  B.  Munro,  Principles  and  Methods  of  Municipal  Administration, 
chap,  viii,  and  J.  A.  Fairlie,  Municipal  Administration,  chap.  viii. 

3"  If  all  the  buildings  burned  in  the  United  States  in  any  single  year 
were  placed  side  by  side  they  would  make  an  avenue  of  desolation  all 
the  way  from  Chicago  to  New  York,  and  at  every  three-quarters  of  a 
mile  someone  would  be  found  burned  to  death."  In  the  past  ten  years 
enough  buildings  have  been  burned  in  this  country  to  line  a  boulevard 
reaching  from  ocean  to  ocean.  In  the  same  decade,  moreover,  fire  has 
destroyed  thirty  thousand  lives  and  maimed  more  than  twice  as  many 
persons.  It  has  cost  us  more  in  killed,  wounded,  and  missing  than 
Antietam  and  Gettysburg  put  together.— W.  B.  Munro,  Principles  and 
Methods  of  Municipal  Administration,  p.  319. 

4The  fire  loss  in  Chicago  was  ten  times  that  of  Berlin.  The  per-capita 
loss  in  some  years  in  Cincinnati  has  been  more  than  five  dollars,  while 
in  Frankfort  on  the  Main,  a  city  of  about  the  same  size,  it  is  about 
forty  cents.  See  W.  B.  Munro,  Principles  and  Methods  of  Municipal 
Administration,  p.  317. 


48o      STATE  AND  MUNICIPAL  GOVERNMENT 


Fire 
prevention 


Methods 
of  fire 

prevention  : 
(i)  Fire 
limits 


(2)  Fire- 
resisting 
construction 


protection  against  fire  is  a  necessary  function  of  municipal 
administration  in  guarding  the  safety  of  its  citizens. 

One  reason  why  the  loss  of  fire  is  less  in  England  and  on  the 
Continent  than  in  the  United  States  is  because  far  more  effort 
is  expended  on  fire  prevention.  In  Greater  New  York  there 
are  several  times  as  many  fires  as  there  are  in  Greater  London, 
although  London  has  a  larger  population  and  a  greater  area. 
This  is  in  part  due  to  the  character  of  buildings  both  in  Eng- 
land and  on  the  Continent ;  owing  to  the  high  price  of  wood, 
construction  abroad  is  generally  of  brick,  stone,  or  some  fire- 
resisting  material,  and  the  use  of  wood  is  reduced  to  a  mini- 
mum. As  a  result,  although  there  are  many  fires  in  London 
and  in  continental  cities,  they  seldom  gain  much  headway  and 
are  easily  confined  to  the  premises  in  which  they  start.  A  sec- 
ond reason  for  the  smaller  number  of  fires  abroad  is  to  be  found 
in  the  laws  which  penalize  negligence  and  make  the  tenant  or 
owner  of  the  building  liable  for  damages  to  others  from  fires 
which  have  started  in  their  premises.  More  care,  moreover, 
is  taken  in  determining  the  cause  of  fires  and  in  fixing  the 
responsibility.  In  the  United  States  the  work  of  fire  preven- 
tion has  been  sacrificed  for  the  work  of  fire  protection.  Never- 
theless, beginning  with  191 1,  in  Pennsylvania,  several  states 
made  provisions  for  a  centralized  bureau  for  fire  protection, 
and  both  state  and  city  are  becoming  increasingly  alive  to  the 
necessity  of  education  and  investigation  in  this  field. 

The  most  common  method  of  fire  prevention  is  to  establish 
fire  limits ;  that  is,  zones  or  sections  of  the  city  within  which 
only  fireproof  or  fire-resisting  buildings  may  be  erected.  The 
laws  do  not  require  the  destruction  of  old  wooden  buildings, 
but  simply  provide  that  all  new  buildings  must  be  constructed 
of  fire-resisting  materials ;  and  if  extensive  changes  are  made 
in  old  buildings,  these  alterations  shall  conform  with  certain 
regulations.  Closely  parallel  to  and  a  part  of  the  method  of 
prescribing  fire  limits  is  the  classification  of  the  "construction 
of  buildings.  Buildings  are  rated  and  their  construction  pre- 
scribed in  certain  classes,  dependent  upon  their  fire-resisting 
possiliilities.  In  buildings  of  the  first  class  fire-resisting  mate- 
rial must  be  used  throughout,  and  the  use  of  wood  is  permitted 


SAFETY  481 

only  for  floor  surfacing,  trimmings,  windows,  and  doors.  In 
second-class  construction,  which  is  ordinarily  applied  to  in- 
dustrial and  mercantile  buildings  outside  the  danger  zone,  the 
floors,  roofs,  and  partitions  may  be  of  wood,  although  the 
wooden  roof  must  be  covered  with  some  fire-resisting  material. 
In  buildings  of  the  third  class,  which  would  include  private 
dwellings  and  small  apartment  or  tenement  houses,  the  use  of 
wood  is  generally  allowed  throughout,  although  the  roof  should 
be  covered  with  fire-resisting  material,  and  fire  stops  or  walls 
may  be  required  between  the  different  apartments. 

Fire  prevention  is  also  obtained  by  requiring  a  special  method  Special 
of  construction  based  upon  the  use  to  which  the  building  is  to  ^  gre  ^ 
be  put.    Thus,  there  is  generally  a  special  set  of  regulations  goy^fn[n°° 
governing  theaters,  which  require  an  asbestos  curtain,  frequent  (1)  Theaters 
hose  outlets,  and  sometimes  a  sprinkler  system.    For  factories  (2)  Factories 
special  construction  is  also  demanded,  varying  from  the  so- 
called  fireproof  construction,  which  provides  for  water-tight 
floors,  fire-doors,  shutters  of  metal,  and  windows  of  wired  glass, 
to  the  so-called  slow-burning  construction,  which  depends  for 
its  protection  on  the  size  of  the  wooden  beams  and  the  fre- 
quency of  fire  stops.    In  devising  rules  for  fire  protection  for 
tenements  a  serious  economic  question  arises.  If  the  regulations 
require  that  tenements  shall  be  absolutely  fireproof,  building  (3)  Tene- 
will  be  discouraged,  crowded  and  improper  housing  conditions 
perpetuated,  and  the  rent  raised  to  an  almost  prohibitive  figure 
for  the  tenants.    Investigations  have  proved  that  the  majority 
of  danger  spots  in  tenement  houses  are  the  cellars,  hallways, 
and  roofs.   Thus  a  proper  and  perhaps  not  inadequate  code 
would  require  that  the  cellar  and  first  floor  of  a  tenement 
house  be  practically  fireproof,  that  the  hallways  be  specially 
protected  from  fire  connection  with  the  living  rooms,  and  that 
the  roof  be  of  fire-resisting  material. 

During  the  colonial  period  protection  against  fire  was  under-  Fire 
taken  in  villages  and  small  towns  and  even  cities  by  volunteer  ^"^^  ^^  ^°" 
companies.   The  members  were  supposed  to  equip  themselves 
with  buckets,  axes,   and  other  fire-fighting  implements.     At 
about  the  beginning  of  the  eighteenth  century  these  volunteer 
companies  began  to  be  equipped  with  pumping  engines,  the 


482      STATE  AND  MUNICIPAL  GOVERNMENT 

first  one  being  ordered  by  Boston  in  1702.^  Although  these 
engines  were  sometimes  paid  for  by  the  city,  they  were  gen- 
erally manned  and  operated  by  volunteers.  The  first  steam 
fire-engine  was  purchased  by  Cincinnati  in  1853,  and  shortly 
afterwards  the  system  of  volunteer  companies  gave  way  to  the 
organized  force,  appointed  and  paid  by  the  city."  Since  1870 
there  has  been  a  steady  increase  of  paid  fire-fighting  depart- 
ments, until  almost  every  city  has  such  an  organization,  the 
nucleus  of  which  consists  of  permanent  employees. 
Organiza-  In  the  Organization  of  the  fire  department  both  the  board 

th°e°fire  type  and  the  commissioner  type  are  found.  Boston,  Chicago, 
department  ^^j^^j  New  York  have  adopted  the  commissioner  plan,  and  in 
commission-governed  cities  the  fire  department  is  usually  under 
the  commissioner  in  charge  of  public  safety.  Of  the  large  cities 
Baltimore,  Detroit,  and  San  Francisco  have  the  board  type  of 
organization.  In  all  the  cities  mentioned  the  commissions  or  the 
boards  are  appointed  by  the  mayor.  Like  the  police  department, 
the  fire  department  should  be  under  a  single  head,  but  in  smaller 
cities  the  expense  makes  the  board  organization  more  popular. 
Below  the  commissioner  or  board  is  usually  a  chief,  who  has 
general  charge  of  the  discipline  and  management  of  the  force. 
Fire  Fire  companies  generally  consist  of  a  captain  and  from  ten 

companies  ^^  fourteen  men,  who  are  stationed  in  a  fire-house  equipped 
with  a  certain  amount  of  fire-fighting  apparatus.  Experience 
has  shown  that  the  best  method  of  obtaining  firemen  is  by 
competitive  tests  under  the  civil-service  commission,  together 
with  a  searching  physical  examination.  In  addition,  Boston, 
Chicago,  New  York,  and  Philadelphia  maintain  special  schools 
for  the  training  of  firemen  in  the  use  of  their  fire-fighting  appli- 
ances and  in  the  methods  of  extinguishing  fires.  As  in  the  case 
of  the  police,  employment  in  the  fire  department  is  considered 
almost  permanent,  promotions  are  provided  far  too  often  as  the 
result  (jf  mere  length  of  service,  and  pensions  are  granted  at  the 
age  of  retirement. 

The  modern  appliances  for  fire-fighting  may  be  classified  as 
fixed  and  portable.    The  fixed  appliances  consist  of  the  water 

'Sec  J.  A.  Fairlie,  Municipal  Administration,  pp.  151   157. 
-Baltimore,  1858;  Boston,  i860;  New  Yorii,  1865  ;  Fhiiadeiphia,  1871. 


SAFETY  483 

mains  laid  in  the  streets  and,  in  particular,  the  hydrants,  to  pire- 
which  the  fire-hose  can  be  attached.  It  is  of  vital  importance  fppifan^es 
that  the  hydrants  should  be  frequently  inspected,  that  their 
connections  should  be  of  a  type  affording  no  difficulty  in  at- 
taching the  hose,  and,  in  northern  winters,  that  great  precau- 
tion should  be  taken  to  prevent  their  freezing.  Another  kind 
of  permanent  fire-fighting  apparatus  is  the  fire-tank  and  stand- 
pipes  which  are  placed  in  factories  and  large  buildings.  By 
maintaining  on  the  roof  of  the  building  a  large  tank  filled  with 
water  and  attached  to  various  standpipes  running  throughout 
the  building,  the  firemen  may  find  on  almost  any  floor  suf- 
ficient pressure  to  deal  with  a  fire  on  that  particular  floor. 
A  very  successful  permanent  apparatus  for  extinguishing  in- 
cipient fires  is  the  sprinkler  system.  This  consists  of  a  network 
of  pipes  suspended  below  the  ceiling ;  to  it  are  attached  outlets 
sealed  with  a  metal  composition  which  fuses  at  a  comparatively 
low  temperature.  The  sprinkler  system  may  be  regarded  as  a 
means  both  of  preventing  and  of  extinguishing  fires.  It  is  de- 
signed to  put  out  any  incipient  fire  before  it  has  spread  to  a 
dangerous  degree.  To  be  efficient  every  portion  of  the  building 
should  be  within  the  radius  of  some  sprinkler  outlet,  and  cellars, 
closets,  and  stairways  must  be  particularly  guarded.  A  nec- 
essary part  of  the  sprinkler  system  is  the  automatic  alarm, 
which  will  warn  the  nearest  fire-house  when  the  sprinkler 
system  begins  operating.  This  is  necessary  because  in  certain 
buildings  almost  as  much  damage  to  the  stock  may  be  done  by 
water  as  by  fire.  A  serious  limitation  of  the  sprinkling  system 
is  found  in  northern  cities,  where  the  temperature  in  store- 
houses is  below  freezing.  Although  many  attempts  have  been 
made  to  remedy  this  defect,  they  are  all  complicated  and 
perhaps  a  little  uncertain  in  operation. 

Portable  fire-fighting  apparatus  centers  around  the  engine.  Portable 
Until  recently  this  was  a  horse-drawn,  steam-pump,  and  pres-  apparatus" 
sure  engine.  Within  recent  years,  however,  the  engines  have 
been  commonly  motorized  and  the  internal-combustion  engine 
substituted  for  the  steam-pump  and  pressure  engine.  The  pur- 
pose of  these  engines  is  to  take  the  water  at  the  hydrants  from 
the  mains  and  deliver  it  at  the  nozzle  of  the  hose  with  sufficient 


484     STATE  AND  MUNICIPAL  GOVERNMENT 

pressure  to  enable  the  firemen  to  reach  the  fire  at  a  distance 
of  from  sixty  to  eighty  feet.  Inseparable  from  the  fire-engine 
is  the  hose  wagon,  which  carries  the  hose  used  in  fighting  a  fire. 
In  addition  to  the  hose,  the  wagon  carries  its  proportion  of 
firemen,  axes,  and  hand  extinguishers.  In  some  fire  stations 
a  hook-and-ladder  company  is  added.  This  operates  a  large 
truck  carrying  ladders  of  different  lengths  and  often  an  exten- 
sion ladder  which  is  capable  of  reaching  to  a  height  of  eighty 
feet.  Beyond  this  distance,  for  the  lofty  office  buildings,  the 
firemen  must  depend  upon  scaling-ladders,  which  are  short 
ladders  affixed  to  the  window  sills  at  the  different  stories.  In 
order  to  deal  with  the  high  buildings  in  some  of  our  cities  fire- 
towers  have  been  devised ;  these  are  extension  frameworks 
which  can  be  elevated  to  about  eighty  feet,  from  the  top  of 
which  a  turret  nozzle  throws  a  stream  of  water.  Even  this  is 
limited  in  its  effectiveness  to  less  than  two  hundred  feet. 
Hence  the  protection  of  upper  stories  of  lofty  buildings  must 
depend  upon  fire-resisting  materials  and  the  use  of  standpipes, 
so  that  the  fire  may  be  fought  on  each  separate  floor.  In  sea- 
ports fire-boats  are  not  uncommonly  found.  These  are  tugs  of 
light  draft  carrying  very  powerful  engines  and  manned  by  a 
fire  company.  These  have  proved  of  great  value  in  fighting 
fires  along  the  water  front  as  well  as  in  dealing  with  fires 
on  boats  anchored  in  the  harbor. 
Cost  of  the  The  one  hundred  and  forty-six  cities  having  a  population  of 
ment^^*"^  over  30,000  spent,  in  1919,  $64,540,941  on  their  fire  depart- 
ments. This  total  was  exceeded  only  by  the  expenses  of  schools, 
general  government,  the  police  department,  and  highways.^ 
The  amount  has  been  and  is  steadily  increasing.  Of  the  cities 
with  a  population  of  over  500,000  New  York  spent  the  greatest 
amount  ($10,632,079)  and  Baltimore  the  least  ($962,885). 
Boston,  however,  expended  more  per  capita  ($2.74),  Pittsburgh 
coming  next,  and  Philadelphia  spending  the  least  ($1.20).  The 
per-capita  expenses  of  cities  between  300,000  and  500,000 
varied  from  that  of  San  Francisco  ($3.41)  to  the  Si. 57  which 
was  spent  by  New  Orleans.'' 

'  Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statistics 
of  Cities  (1919),  pp.  204-205.  '■^Ihid. 


SAFETY  485 

3.  The  Health  Department 

Attempts  to  protect  public  health  began  during  the  eighteenth  Deveiop- 
century  in  the  Atlantic  seaports,  chiefly  through  the  establish-  city  organi- 
ment  of  quarantines  against  infectious  and  contagious  diseases,  the'preser- 
Originally  the  colonial  assembly  exercised  this  power,  but  the  vation  of 
ports  of  Boston,  New  York,  and  Philadelphia  soon  found  it 
necessary  to  establish  local   boards   of   health.     These   local 
boards,  however,  were  not  permanent,  and  their  action  was 
aimed  in  general  against  such  diseases  as  cholera  or  smallpox. 
Moreover,  few  preventive  measures  were  taken,  and  the  board 
of  health  frequently  did  not  begin  to  operate  until  pestilence 
was  actually  at  hand.    The  modern  system  of  sanitary  inspec- 
tion began  in  1866  with  the  establishment  of  the  Metropolitan 
Board  of  Health  for  New  York,  Brooklyn,  and  the  vicinity.^ 
Chicago  followed  in  1867,  Boston  in  1872,  and  New  Orleans 
in  1873.    Since  that  time  the  number  of  boards  of  health  has 
rapidly  extended  until  practically  every  city  has  a  board  or 
health  officer  appointed  by  the  municipal  authorities,  and  in 
cities  of  over  200,000  there  is  a  considerable  corps  of  sani- 
tary  inspectors   and   agents   enforcing   health   regulations   or 
attempting  to  prevent  disease. 

The  powers  of  the  sanitary  police  are  determined  in  part  by  Legal  basis 

,  ,  ,  .  1    •       xu     of  sanitary 

statute  law  and  by  the  common  law  as  mterpreted  m  the  pouce 
American  courts.-  This  depends  upon  the  common  law  of  p^^^""® 
nuisances.  What  constitutes  a  nuisance  may  in  the  original 
instance  be  determined  by  the  legislature  subject  to  judicial 
review.  The  general  tendency  of  the  courts,  however,  is  to 
allow  the  legislature  considerable  latitude  in  the  determination 
of  what  are  nuisances,  particularly  those  which  affect  the  public 
health.  Originally  a  nuisance  could  be  abated  only  as  the 
result  of  a  criminal  proceeding,  which  was  a  long  and  uncertain 
method.  The  common-law  right  to  abate  a  nuisance — which 
is  possessed  by  every  citizen  and  official  alike — was  seldom 
invoked,  because  it  involved  the  person  so  invoking  it  in  the 
risk  of  a  suit  for  damages  in  case  the  court  should  declare 

iSee  J.  A.  Fairlie,  Municipal  Administration,  pp.  165-175. 
2Goodnow  and  Bates,  Municipal  Government,  pp.  302-304. 


486      STATE  AND  MUNICIPAL  GOVERNMENT 

the  thing  abated  not  to  be  a  nuisance.  About  the  middle  of  the 
nineteenth  century,  however,  it  was  decided  by  the  New  York 
courts  that  a  hearing  and  trial  before  a  board  of  health  con- 
stituted a  judicial  proceeding  and  that  the  board  itself  could 
declare  a  thing  a  nuisance  and  order  it  abated.  Nevertheless, 
as  a  rule  boards  of  health  proceed  without  preliminary  hear- 
ings and  direct  the  abatement  of  the  nuisance,  but  this  action 
is  subject  to  revision  on  a  collateral  judicial  action  like  a  suit 
for  damages  or  an  injunction, 
organiza-  In  most  municipalities  the  health  department  is  organized 
health  ^s  a  board.    There  are  good  reasons  for  adopting  this  type  of 

department  organization.  The  department  is  frequently  called  upon  to 
make  ordinances  and  rules,  and  public  opinion  is  probably 
better  satisfied  if  these  are  the  results  of  the  deliberations  of 
several  individuals  rather  than  the  dicta  of  a  single  commis- 
sioner. Nevertheless,  in  some  of  our  largest  cities — New  York, 
for  example — the  department  of  health  is  under  a  single  com- 
missioner. Because  of  the  relation  of  the  health  department  to 
collateral  departments,  like  police,  street-cleaning,  or  (in  the 
case  of  a  seaport),  the  port  authorities,  ex-officio  boards  have 
been  tried  in  which  the  heads  of  these  various  departments 
shall  serve.  Wherever  the  board  type  of  organization  is  adopted, 
an  executive  expert  must  be  employed  even  in  the  smallest 
cities.  This  health  officer  or  agent  of  the  board  of  health  acts 
in  a  threefold  capacity.  It  is  surmised  that  in  many  instances 
he  is  the  source,  by  means  of  advice  given  to  the  board  of 
health,  of  the  ordinances  and  regulations  which  the  board  pro- 
mulgates. He  acts,  moreover,  as  the  executive  agent  of  the 
board  in  carrying  out  these  regulations.  Finally,  in  many  cities 
he  is  the  inspector — in  the  smallest  sometimes  the  sole  inspec- 
tor— of  the  sanitary  conditions  which  the  boards  of  health 
attempt  to  supervise.  In  large  cities,  however,  the  board  of 
health  supervises  the  work  of  a  large  number  of  sanitary 
inspectors  and  agents — often  hundreds  in  the  largest  cities. 
Relations  of  I  he  health  of  the  city  is  dependent  upon  many  departments 
department  ^^'^^  wliich  the  department  of  health  may  have  no  control. 
dcMrtment  "^^^^'^  ^'^^  Water,  the  sewer,  and  the  street-cleaning  departments, 
together   with   those  charged  Vv'ilh   the  removal  of  the  city's 


SAFETY  487 

waste,  are  vital  factors  in  the  preservation  of  the  health  of  the 
city;  but,  as  will  be  seen,  these  departments  operate  almost 
independently  of  the  health  department  and  sometimes  not  in 
harmony  with  it.  The  duties  of  these  collateral  departments 
are  so  manifold  and  important,  and  the  departments  themselves 
already  so  large,  that  it  would  be  impossible  to  combine  them 
under  the  board  of  health  without  decreasing  both  its  adminis- 
trative efficiency  and  that  of  these  collateral  departments  as  well. 

Almost  universally  municipal  boards  of  health  are  directed  Functions 

,      ,  ■    .,  ,.,.  ,  .   ,  of  the  board 

to  mspect  and  abate  unsanitary  conditions  which  may  prove  of  health: 
detrimental  to  the  health,  comfort,  and  convenience  of  the  (i)  Precau- 
citizens.  Ordinarily  this  includes  supervision  over  the  removal  action 
of  the  garbage  of  the  city.  In  some  instances  this  is  actually 
performed  by  subordinates  of  the  board  of  health,  but  where  it 
is  conducted  by  private  contract,  or  by  another  department  of 
the  city  administration,  the  board  of  health  exercises  super- 
visory power.  A  special  control  is  exerted  over  plumbing  and 
house  drainage  in  various  ways — by  the  formulation  of  certain 
regulations  and  by  the  examining  and  licensing  of  plumbers 
and  by  the  inspection  of  their  work.  In  some  cities  the  use 
of  soft  coal  is  prohibited  or,  if  allowed,  smoke  consumers  must 
be  used.  Certain  trades,  particularly  slaughterhouses  and  ren- 
dering plants,  are  subject  to  special  inspection  and  investiga- 
tion. General  factory  inspection  to  determine  the  hygienic 
conditions  of  factories  is  sometimes  performed  by  the  board  of 
health  and  sometimes  by  the  department  of  labor  or  factory  or 
building  inspection.  Boards  of  health  are  commonly  called 
upon  to  examine  the  condition  of  the  water  supply  and  the  dis- 
posal of  the  sewage.  In  like  manner  other  departments  are 
subject  to  the  supervision  of  the  board  of  health.  The  inspec- 
tion of  food  in  order  to  prevent  disease  is  becoming  more  and 
more  important,  especially  in  the  case  of  the  milk  supply. 
Practically  every  city  is  equipped  with  at  least  one  inspector 
of  milk  and  the  larger  cities  with  a  more  adequate  number. 
State  laws  are  constantly  being  passed  requiring  the  inspection 
of  certain  food  products,  sometimes  carried  on  by  independent 
state  authorities,  but  in  many  cities  by  agents  of  the  board 
of  health. 


488      STATE  AND  jSIUXICIP.AL  GOVERNMENT 


[Vaccina- 
tion and 
inoculation] 


(2)  Manage- 
ment and 
control  of 
infectious 
diseases 


[Treatment 
of  commu- 
nicable 
diseases] 


Laws  requiring  vaccination  for  smallpox  are  found  as  early 
as  the  beginning  of  the  nineteenth  centur\'.  In  the  United 
States  the  most  effective  enforcement  of  these  laws  is  in  con- 
nection with  the  school  regulations,  which  prohibit  the  attend- 
ance of  children  at  the  schools  unless  vaccinated.  This  is  now 
being  extended  to  other  diseases ;  for  example,  in  New  York 
the  board  of  health  is  immunizing  all  children  to  diphtheria. 

One  of  the  important  functions  of  the  city  board  of  health 
is  the  discovery  of  infectious  diseases.  Before  1880  smallpox 
was  the  only  infectious  disease  which  was  required  to  be  re- 
ported. The  number  has  constantly  been  increased  since  then, 
until  it  includes,  in  all  cities,  smallpox,  diphtheria,  scarlet  fever, 
and  typhoid  fever.  In  rarer  instances  regulations  require  the 
reporting  of  measles,  cerebrospinal  meningitis,  yellow  fever, 
whooping  cough,  and  German  measles.  Local  boards  of  health, 
however,  may  by  regulation  require  physicians  to  report  the 
presence  of  any  disease.  Until  very  recently  tuberculosis,  which 
was  recognized  as  communicable,  was  required  to  be  reported 
only  in  New  York  City.  The  tendency  now  is  to  require  noti- 
fication of  most  communicable  or  dangerous  diseases.^  Until 
very  recently  few  cities  were  equipped  to  discover  the  presence 
of  these  diseases.  Dependence  was  had  upon  the  local  physi- 
cian ;  but  more  lately  the  larger  cities  have  a  corps  of  inspec- 
tors, and  frequent  inspection  of  school  children  by  the  school 
physician  or  school  nurse  is  proving  to  be  an  excellent  method 
of  discovering  the  presence  of  infectious  or  dangerous  disease. 
Municipal  laboratories  are  maintained  in  a  few  cities  for  the 
investigation  of  these  diseases  through  the  testing  and  examina- 
tion of  bacteria.  More  commonly,  however,  this  is  a  function 
undertaken  by  the  state  authorities. 

Until  a  comparatively  recent  time  few  cities  could  do  more 
than  to  quarantine  in  his  dwelling  the  patient  suffering  from 
infectious  disease.  This  quarantine  was  difficult  to  enforce 
and  not  particularly  effective  in  large  cities.  A  single  excep- 
tion is  smallpox,  for  which  some  cities  maintain  a  special 
hospital  known  as  the  pesthouse.  In  later  years,  however, 
state  laws  have  required  cities  to  maintain  isolation  hospitals, 

^See  M.  J.  Rosenau,  Preventive  Medicine  and  Hygiene,  pp.  1004-1005. 


SAFETY  489 

where  patients  suffering  from  dangerous  infectious  diseases 
may  be  treated.  By  state  law  cities  and  counties  are  in  some 
states  required  to  provide  hospitals  or  sanatoriums  for  per- 
sons suffering  from  tuberculosis.'  It  is  a  burning  issue  as  to 
whether  public  authorities  should  undertake  treatment  of  non- 
communicable  diseases. 

Very  little  is  done  by  the  cities  in  the  way  of  research  con-  (3)  Research 
cerning  public  health.  Not  all  states  even  require  the  cities 
to  compile  adequate  vital  statistics,  this  being  usually  under- 
taken by  the  state  authorities,  and  in  only  the  largest  cities  is 
there  much  attempt  at  the  examination  of  specimens  and  the 
determination  of  the  causes  of  diseases.  It  is  true  that  almost 
every  city  maintains  some  facilities  for  testing  certain  food 
products,  but  this  can  hardly  be  classified  as  research.  Research 
in  public  health  is  more  frequently  carried  on  by  means  of  the 
state  or  federal  authorities. 

The  state  board  of  health  in  some  states  conducts  a  state-  (4)  Educa- 
wide  campaign  for  education  in  matters  of  public  health.  In  a 
few  cities,  however,  this  is  done  largely  in  connection  with  the 
school  system.  Special  instruction  is  given  to  the  children 
concerning  the  use  of  alcohol  and  narcotics,  and  the  simple  ele- 
ments of  personal  hygiene  are  taught.  But  whether  these  func- 
tions should  be  performed  by  the  department  of  education 
rather  than  by  the  board  of  health  is  a  much-debated  question. 

In  1919,  in  the  cities  having  more  than  30,000  population,  Expenditure 

•       1       1  1  i-  1  in  health 

over  $20,000,000  was  spent  m  health  conservation  and  over  conservation 
$60,000,000  in  sanitation  or  the  promotion  of  cleanliness.- 
More  than  $5,000,000  was  spent  for  the  prevention  of  tubercu- 
losis, more  than  $4,000,000  for  the  treatment  of  communicable 
diseases  in  hospitals,  and  more  than  $2,000,000  in  treating 
other  communicable  diseases.  Medical  work  for  school  children 
required  over  $1,800,000;  milk  and  dairy  control,  $921,000; 
and  other  food  regulation,  $814,000."    The  per-capita  expense 

1  Treatment  is  also  undertaken  in  some  cities  for  malaria,  hookworm, 
venereal  diseases,  diseases  of  infancy,  and  rabies. 

2  Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statis- 
tics of  Cities  (1919),  pp.  204-405. 

3  Ibid.  pp.  183-184. 


490      STATE  AND  MUNICIPAL  GOVERNMENT 

for  the  conservation  of  public  health  was  only  58  cents  through- 
out the  country.  But  this  varied  in  cities  having  a  population 
of  more  than  500,000,  from  Baltimore,  where  the  per-capita 
expense  was  39  cents,  to  Pittsburgh,  where  the  expense  was 
97  cents.  In  cities  of  the  next  class  the  per-capita  expense 
varied  from  $1.44  in  Buffalo  to  21  cents  in  Indianapolis. 

4.  The  Building  Department 
Building  Building  regulations  have  been  adopted  in  many  cities.  Their 

regulations  ,        .      .  ■  r     ^^         ^  1  r-  1  •  1         • 

administration  falls  between  the  fire  and  sanitary  regulations 
just  discussed  and  the  city-planning  movement,  which  will  be 
considered  in  the  next  chapter.  The  purpose  of  building  regu- 
lations is,  first,  for  protection  from  fire ;  second,  for  stability  of 
construction ;  third,  for  sanitary  conditions ;  and,  fourth,  for 
the  satisfaction  of  considerations  of  convenience  or  beauty. 
In  connection  with  the  building  regulations  some  cities  have 
adopted  stringent  housing  laws  which  even  determine  the 
amount  of  cubic  feet  of  air  per  person  in  rooms,  particularly 
in  factories.  The  department  of  health  is  vitally  associated 
with  the  building  department  in  enforcing  the  sanitary  and 
plumbing  regulations.  The  building  department  is  also  called 
upon  to  consider  the  plans  for  future  buildings  in  order  to  see 
that  they  satisfy  the  requirements  of  the  fire  department.  Thus, 
in  most  cities  a  license  to  build  or  to  make  serious  alterations 
is  required,  and  in  order  to  obtain  this  detailed  plans  must  be 
submitted.  In  all  cities,  theoretically,  and  in  the  largest  cities, 
actually,  inspectors  visit  the  buildings  frequently  for  the  pur- 
pose of  seeing  that  the  work  is  progressing  in  accordance  with 
the  accepted  plans. 


CHAPTER  XXVIII 

MUNICIPAL  ADMINISTRATION.    CONVENIENCE 

City  Planning,  Streets,  Water,  Wastes,  Sewage, 

Public  Utilities 

I.  City  Planning 

In  its  widest  sense  city  planning  includes  the  provision  for  city 
the  city's  health,  convenience,  beauty,  and  even  morals/  City  ^  ^""^"^ 
planning  deals  with  both  the  present  and  the  future.  It  requires 
not  only  accurate  knowledge  of  the  exact  present  conditions 
but  considerable  foresight  in  devising  for  future  developments. 
Plans  for  the  city's  convenience  include  the  layout  of  the 
streets,  with  the  determination  of  their  width ;  the  relation 
of  the  water  supply  and  the  sewerage  to  the  present  and  future 
growth  of  the  city ;  the  location  of  public  buildings,  railroad 
terminals,  and  water  plants  as  well  as  easy  methods  of  com- 
munication for  the  city's  convenience.  An  adequate  plan  for 
developing  the  city  must  contain  provisions  for  the  city's  health. 
The  procuring  of  an  adequate  water  supply  and  the  distribu- 
tion of  the  city's  waste  should  be  studied  not  only  from  the 
point  of  view  of  the  city's  convenience  but  from  that  of  the 
health  of  its  citizens.  Park  systems  and  recreation  centers  are 
obvious  examples  of  provisions  for  the  city's  health.  But  even 
more  vital  than  these  is  the  proper  determination  of  the  system 
of  city  streets  and  alleyways.  Experience  with  ^'back-yard 
tenements"  and  "noisome  alleys,"  which  have  been  allowed  to 
develop  because  of  lack  of  foresight  in  laying  out  the  streets 

^The  literature  on  city  planning  is  large  and  varied.  N.  P.  Lewis's 
"The  Planning  of  the  Modern  City"  and  "City  Planning,"  by  John 
Nolen  (ed.),  are  examples  of  extended  works.  W.  B.  Munro,  Princi- 
ples and  Methods  of  Municipal  Administration,  chap,  i,  gives  a  brief 
account,  with  references  to  some  of  the  standard  authorities.  A  briefer 
account  is  found  in  Goodnow  and  Bates,  Municipal  Administration, 
pp.  360-370. 

491 


492      STATE  AND  IMUNICTPAL  GOVERNMENT 

and  determining  the  size  of  the  building  lots,  are  all  too  com- 
mon in  the  history  of  city  slums.  Of  great  importance  is  the 
plan  for  the  beautiiication  of  the  city.  It  is  sometimes  said 
that  mean  streets  develop  mean  people.  An  adequate  city  plan 
should  avoid  mean  streets,  should  take  advantage  of  the  natural 
physical  features  of  the  city,  and  should  plan  for  squares  and 
parks,  which  at  some  future  time  might  become  beauty  centers. 
Closely  connected  with  this  are  the  restrictions  which  the  city- 
planning  authorities  should  devise  for  the  erection  of  buildings, 
the  height  and  character  of  their  construction,  etc.  Limitations 
on  the  use  of  signboards  and  advertising  are  also  legitimate 
functions  for  the  planning  authorities  to  deal  with.  Finally,  a 
city  plan  should  not  neglect  the  sociological  conditions  of  the 
city.  A  little  has  been  done  along  this  line  in  zoning  systems, 
which  attempt  to  restrict  certain  types  of  business  and  factories 
to  definite  localities  and  to  provide  for  residence  districts; 
while  some  European  cities  have  gone  even  further  and  deter- 
mine the  areas  in  which  theaters  and  amusement  halls  may  be 
located.  All  these  things  have  an  effect  upon  the  moral  develop- 
ment of  the  citizens.  Proper  home  life  and  suitable  upbringing 
of  children  cannot  be  obtained  in  the  middle  of  a  crowded 
retail-business  center,  while  the  erection  of  tenement  houses  or 
the  building  of  factories,  loft-buildings,  or  garages  may  ruin  a 
section  of  the  city  devoted  to  small  homes.  A  schoolhouse  and 
a  railroad  station  are  bad  neighbors  to  each  other,  and,  unless 
watched,  an  inchoate  slum  may  develop  in  what  was  the  garden 
of  a  decayed  mansion. 
City  Although  these  are  the  widest  ideals  of  city  planning,  few 

in^Amedca  ^^  "^  cities  in  the  United  States  have  realized  them.  In  a  few 
cases  only  has  the  mere  physical  plan  of  the  city  been  deter- 
mined, and  most  cities  have  been  allowed  to  develop  in  a  hit- 
or-miss  fashion.  Exception  should  be  noted  in  the  cases  of 
Philadelphia,  Washington,  and  New  York  above  Fourteenth 
Street,  but  even  in  these  cases  little  has  been  done  beyond  plan- 
ning for  the  mere  convenience  and  physical  layout  of  the  city. 
The  city-planning  movement  in  American  cities  is  thus  dealing 
with  accomplished  facts  and  attempting  a  process  of  recon- 
struction in  order  to  remedy  the  errors  of  past  generations  and, 


CONVENIENCE  493 

possibly  in  the  suburbs,  to  provide  for  the  adequate  growth  of 
the  city  along  proper  lines.  Up  to  about  1910  city  planning 
was  of  the  most  casual  character.  Occasionally  different  cities 
appointed  temporary  commissioners  to  survey  and  plan  for 
certain  special  features.  Many  small  cities  had  improvement 
boards,  and  larger  cities  had  park  commissions ;  but,  after  all, 
these  were  dealing  with  isolated  problems  and  their  action  was 
uncertain  and  seldom  consistent.  In  1907  Hartford,  Connecti- 
cut, established  the  first  permanent  planning  commission,  and 
since  that  time  the  movement  has  spread  rapidly  and  widely 
throughout  the  country.  In  some  states — Massachusetts,  for 
example — the  city  government  is  compelled  by  state  statute  to 
appoint  a  planning  board  or  commission. 

Planning  boards  and  commissions  in  the  United  States  are  composition 
composed  in  three  different  ways.  One  type  consists  of  citizens  o°piann^i"g 
who  have  no  connection  with  the  city  government ;  this  board  *°""^s 
is  more  or  less  a  permanent  body,  being  subject  to  partial  re- 
newal each  year.  A  second  type  is  composed  of  city  officials, 
generally  members  of  the  city  council,  and  thus  is  less  perma- 
nent in  character  and  more  liable  to  political  influence  and 
changes.  The  third  type  represents  a  combination  of  the  two. 
The  first  variety  of  city-planning  board  has  an  advantage  in 
that  it  is  removed  from  the  influence  of  municipal  politics  and 
may  secure  the  services  of  men  of  outstanding  ability.  Its  chief 
difficulty  is  that  it  has  no  formal  connection  with  the  city 
council,  which  makes  the  appropriations  and  passes  the  ordi- 
nances necessary  to  realize  the  aims  of  the  planning  board.  The 
third  kind  of  planning  board,  which  contains  certain  represent- 
atives of  the  city  government,  should  theoretically  be  the  most 
efficient.  It  possesses  the  advantages  of  the  first  type  and  adds 
the  representatives  of  the  city  government,  who  may  be  able 
to  influence  the  council  to  carry  out  the  plans.  In  practically 
all  cities  the  powers  of  the  planning  board  are  merely  advisory. 
They  are  frequently  given  an  appropriation  (generally  an  in- 
adequate one)  to  make  surveys  or  gather  material,  but  they 
lack  the  power  to  realize  these  plans  and  to  put  them  into  effect. 
This  is  probably  as  it  should  be,  since  the  political  authorities 
of  the  city  rightly  determine  the  policy  and  control  the  purse. 


494      STATE  AND  MUNICIPAL  GOVERNMENT 


Basis  of  a  The  basis  of  a  city  plan  is  an  accurate  and  painstaking 
city  plan  survey.  This  should  include  not  simply  the  physical  layout  of 
the  city  but  the  location  of  all  water  pipes  and  sewer  pipes, 
and  underground  conduits,  the  accurate  determination  of  street 
boundaries,  and  so  forth.  Experience  has  shown  that  few  cities 
possess  in  their  archives  such  a  complete  and  painstaking  sur- 
vey.^ In  addition  to  the  physical  survey,  an  economic  survey 
should  be  made  of  the  character  of  the  city's  industries  and 
the  city's  resources.  A  social  survey  should  also  be  compiled. 
In  fact,  the  archives  of  a  city-planning  commission  should 
contain  evidence  of  all  sorts  on  all  problems  which  city  plan- 
ning in  its  widest  sense  might  involve.  Such  a  survey  is  abso- 
lutely necessary  before  any  proper  and  adequate  plans  can 
be  made;  it  is  never  complete  but  must  constantly  be  kept 
up  to  date.  Even  from  such  a  careful  survey,  the  making  of 
plans  for  future  development  involves  a  considerable  element 
of  chance  and  gives  opportunity  for  use  of  foresight  in  the 
highest  degree. 

In  the  United  States  the  city-planning  commissions  face 
many  difficulties.  The  first  of  these  is  constitutional  and  legal. 
The  Constitution  of  the  United  States  and  constitutions  of  the 
various  states  contain  many  limitations  upon  the  taking  of 
private  property.  Just  what  is  a  public  use  for  which  alone 
private  property  may  be  taken  varies  from  state  to  state  and 
from  decade  to  decade.  It  is  not  infrequently  necessary  for  a 
planning  commission  to  secure  special  legislation  from  the  state 
legislature  in  order  to  enable  the  city  government  to  carry 
out  its  plans. 
(2)  Expense  A  second  difficulty  which  confronts  the  planning  board  is 
financial.  City  planning  is  expensive ;  particularly  is  this  true 
in  the  reconstruction  of  streets  and  the  remedying  of  mistakes 
made  by  previous  generations.  The  taking  of  land  to  widen  a 
narrow  street,  in  order  that  it  may  be  adequate  to  carry  the 
traffic  it  naturally  bears,  is  sure  to  involve  the  city  in  expenses 
far  beyond  the  amount  originally  estimated.  T(  may  be  entirely 


Difficulties 
of  city 
planning : 

(i)  Consti- 
tutional 
and  legal 


^As  a  result  of  a  survey  made  in  one  district  of  a  New  England  city 
enough  untaxed  land  was  discovered  to  pay  in  a  sinfjlc  year  for  the 
entire  survey. 


CONVENIENCE  495 

possible  to  demonstrate  the  fact  that  a  new  street  giving  access 
to  a  terminal  or  water  front  will  more  than  pay  for  itself  by- 
increasing  the  valuation  of  the  property  along  it,  besides  saving 
an  immense  sum  to  the  industries  using  such  a  street.  Never- 
theless the  first  cost  is  almost  prohibitive. 

A  third  difficulty  which  the  planning  board  too  often  is  (3)  meffi- 
forced  to  contend  with  is  the  inefficiency  or  corruption  of  the  dtygov- 
political  bodies  of  the  city  government.  The  laying  out  or  the  ^'^°™^''* 
widening  of  streets  furnishes  an  opportunity  for  private  gain 
which  has  too  often  been  taken  advantage  of  by  members  of 
the  city  government.  The  city  government  at  best  is  a  chang- 
ing body ;  a  city  plan  requires  years  to  reach  its  complete  de- 
velopment. Frequently  one  city  government  has  reversed  the 
action  of  its  predecessors  and  has  abandoned  or  altered  a  care- 
fully-thought-out plan  of  development.  Finally,  city  planning 
in  America  faces  the  difficulty  of  the  rapid  and  unexpected 
development  of  cities.  The  location  of  new  industries  may  call 
for  the  alteration  of  a  carefully  prepared  plan,  and  the  shifting 
of  population  may  compel  the  abandonment  of  certain  cen- 
ters which  were  designed  for  one  type  of  population  and  the 
extension  of  a  business  zone  into  a  residence  district. 

The  expense  of  city  planning  obviously  cannot  be  met  from  cost  of  city 
the  annual  tax  levy.  The  usual  practice  in  the  United  States  ^  *°°^°^ 
is  to  assess  the  cost  of  a  large  proportion  of  the  improvement 
upon  the  abutting  property,  but  even  this  is  inadequate.  In 
many  of  the  foreign  cities  which  have  attempted  reconstruction 
the  city  governments  have  acquired  more  property  than  was 
necessary  for  their  particular  plan,  and  they  have  then  at- 
tempted to  sell  this  extra  land  at  a  value  enhanced  as  the  result 
of  the  improvement.  Theoretically  this  is  an  excellent  method, 
but  practically  less  has  been  realized  in  every  instance  than 
was  expected.  It  has  been  tried  in  the  United  States,  but  with 
little  success,  for  political  influence  generally  makes  the  city 
as  a  purchaser  pay  the  highest  price  for  property  acquired  and 
as  a  seller  receive  much  less.  This  is  true  even  where  no  cor- 
ruption can  be  found,  and  where  corrupt  politics  have  a  hold 
the  estimated  advantages  of  this  system  are  never  experienced 
by  the  city. 


496      STATE  AND  IMUNICIPAL  GOVERNMENT 

status  of  In  spite  of  all  these  obstacles  and  difficulties  city  planning 

ning^iT"'     i^  America  is  being  pushed  forward  with  considerable  success. 

the  United    Many  citics  are  constructing  civic  centers,  as  in  Cleveland ; 
states  -^  o  >  5 

many  more  are  providing  for  parks  and  parkways ;  not  a  few 
have  adopted  zoning  systems  and  restrictions  upon  the  use  of 
private  property  to  the  advantage  of  the  health  and  morals  of 
future  generations ;  while  many  cities  by  constructing  new 
streets  and  widening  old  ones  are  attempting  to  remedy  their 
former  mistakes. 

2.  Streets 

Importance  The  Streets  are  the  most  important  portions  of  the  city's 
stre'e\^  territory  and  its  most  valuable  property.  The  importance  of 
the  city  street  lies  in  the  fact  that  even  in  old  cities  from 
25  to  30  per  cent  of  the  city's  area  was  to  be  found  in  the 
streets,  while  in  modern  cities  almost  40  per  cent,  and  in  the 
case  of  Washington,  D.C.,  50  per  cent,  of  the  city's  territory 
is  devoted  to  streets.  The  streets  themselves  bear  the  traffic 
and  business  of  the  city.  This  means  not  only  that  they  serve 
as  means  of  communication  for  foot  and  vehicular  traffic  but 
also  that  they  carry  on  their  surface  the  tramways  and  beneath 
their  surface  the  water,  sewer,  and  gas  mains,  and,  in  the  larger 
cities,  conduits  for  wires,  and  tunnels  and  subways  for  under- 
ground transportation.  Above  their  surface,  in  the  older  and 
smaller  cities,  are  strung  wires  supported  on  poles  and  in  some 
of  the  larger  ones  are  found  elevated  tracks  for  transportation. 
The  life  of  the  city  depends  upon  the  city  streets,  for  without 
them  there  would  be  no  access  to  private  property,  no  means 
of  communication,  no  method  of  i)r()viding  light  and  air  for 
the  buildings.  The  city  streets  have  a  great  marketable  value. 
Thus,  in  New  York  City  it  has  been  estimated  that  if  the  land 
of  the  city  streets  were  valued  on  the  same  basis  as  the  adjacent 
private  property  it  would  be  worth  about  one  tenth  of  the  esti- 
mated value  of  the  entire  farm  lands  in  the  United  States.^ 
Nominally  the  city  owns  the  streets,  but  too  often  cities  have 
parted  with  the  use  of  this  valuable  property  to  transportation, 

'  W    B.  Munro,  Principles  and  Methods  of  Municipal  Administration, 
PP-  74-75- 


CONVENIENCE  497 

gas,  and  other  so-called  public-utility  companies,  while  even 
private  individuals  frequently  demand  the  right  to  erect  adver- 
tising structures  or  gasoline  pumps  on  this  most  valuable  of 
all  public  property. 

The  street  or  highway  department  in  city  governments  is  The  street 
sometimes  of  the  board  type  of  organization  and  sometimes  of  in^c1ty"gov- 


ernment : 


the  commissioner  type.  In  whatever  form  adopted,  there  must 
be  certain  subordinate  bureaus  or  divisions.  The  functions  of  zation  and 
the  street  department  are  many,  and  seldom  are  they  all  con-  ^""'^^lons 
centrated  in  the  divisions  or  bureaus  of  any  one  department. 
The  first  duties  which  the  street  department  faces  are  the  plan- 
ning and  location  of  the  streets.  Seldom  do  the  street  depart- 
ments themselves  exercise  this  function  independently  of  other 
branches  of  the  city  government.  The  planning  board  should 
be  consulted  in  order  that  the  location  and  character  of  the 
street  may  correspond  to  the  larger  city  plan.  The  city  council 
is  seldom  willing  to  delegate  to  any  single  department  the  in- 
dependent power  to  locate  a  street.  The  acquisition  of  the  land 
for  the  streets  generally  involves  both  legal  and  financial  ques- 
tions, which  are  very  rarely  handled  by  the  street  department. 
In  the  construction  of  a  street — the  determination  of  its  grade, 
the  character  of  the  pavement,  and  the  location  of  the  side- 
walks— the  street  department  is  vitally  interested  and  usually 
alone  concerned,  although  in  many  cities  the  engineering  de- 
partment performs  some  of  these  duties.  In  like  manner  the 
repair  of  the  streets  is  ordinarily  conducted  by  the  street  de- 
partment, but  the  street-cleaning  may  be  done  either  by  that 
department  or  by  the  board  of  health  or  by  an  entirely  inde- 
pendent department,  as  in  New  York.  The  protection  of  the 
streets  against  too  frequent  excavations  by  public-utility  com- 
panies and  private  individuals,  as  well  as  by  departments  of  the 
city,  is  another  legitimate  function  of  the  street  department. 
In  whatever  way  the  department  is  organized  or  whatever 
duties  are  given  it,  it  must  act  in  close  correlation  with  other 
departments  of  the  city  government. 

Land  for  streets  is  generally  acquired  in  one  of  three  ways. 
The  first  method,  which  applies  usually  to  new  developments 
only,  is  by  gift.    Private  owners  of  tracts  of  land  which  they 


498      STATE  AND  MUNICIPAL  GOVERNMENT 


Acquisition 
of  land  for 
public 
Streets 


Acquisition 
of  land 
by  con- 
demnation 
proceedings 


wish  to  open  up  for  development  not  infrequently  lay  out  the 
streets  and  offer  these  to  the  city.  This  apparent  generosity 
is  not  always  disinterested.  Great  care  should  be  taken  on  the 
part  of  the  city  authorities  that  the  streets  correspond  in  grade 
to  the  adjacent  streets  and  that  there  are  no  difficulties  involving 
great  expense  in  the  way  of  the  extension  of  the  city  water, 
sewer,  and  lighting  systems  to  the  new  development.  It  should 
always  be  borne  in  mind  that  when  private  property  has  once 
been  accepted  as  a  public  street  the  city  becomes  responsible 
for  its  pavements  and  is  financially  liable  for  accidents  which 
may  happen  thereon.  A  second  method  of  acquisition  of  land 
is  by  means  of  purchase.  Here  the  city  goes  into  the  open 
market  and  seeks  to  purchase  private  property.  As  a  rule  the 
city  is  forced  to  pay  far  more  than  the  ordinary  buyer  would 
pay.  In  rare  cases  a  group  of  property  owners  may  join  to- 
gether and  sell  their  land  to  the  city  at  a  favorable  price, 
hoping  to  recoup  themselves  from  the  advantages  gained  by  the 
location  of  the  street.  These  cases,  however,  are  not  frequent. 
The  ordinary  method  by  which  a  city  is  forced  to  acquire 
land  for  its  streets  is  by  condemnation  proceedings.  According 
to  state  statutes  and  charters  the  cities  are  allowed  to  exercise 
the  right  of  eminent  domain  and  acquire  the  property  which  is 
necessary  for  a  public  purpose.  What  constitutes  a  public  pur- 
pose in  the  last  instance  is  subject  to  judicial  decision.  But 
the  courts  have  everywhere  held  that  under  eminent  domain 
the  city  may  secure  the  land  for  streets,  schools  and  public 
buildings,  and  parks.  The  procedure  is  regulated  by  state 
statute.  The  city  determines  what  land  is  necessary  and,  by 
the  right  of  eminent  domain,  takes  possession  of  this  land.  It 
may  offer  the  owner  compensation,  and  if  the  owner  accepts 
the  matter  is  ended  and  the  transaction  is  like  that  of  purchase ; 
but  where  the  owner  is  dissatisfied  with  the  compensation  of- 
fered he  may  sue  the  city  in  a  court  of  law,  and  a  jury 
determines  what  constitutes  an  adequate  compensation  for  the 
property  taken.  This  method  is  tedious  and  expensive,  both 
to  the  city  and  to  the  property  owner.  Certain  other  difficulties 
arise  from  this  method  of  obtaining  land.  It  is  generally  a 
principle  of  law  that  a  city  may  acquire  property  only  for  a 


CONVENIENCE  499 

public  purpose  and  that  property  acquired  for  one  purpose 
cannot  be  used  for  a  different  one.  Thus  a  city  was  formerly 
prevented  from  taking  more  land  by  condemnation  proceedings 
than  was  actually  necessary  for  the  particular  undertaking  it 
had  in  hand.  It  has  frequently  happened  that  a  city  in  securing 
land  for  a  street  would  leave  sections  of  lots  which  would  be 
inadequate  for  proper  buildings  and  make  the  beginning  of  an 
unsightly  slum.  To  remedy  this  condition  certain  states  have 
passed  excess  condemnation  laws  which  allow  the  cities  to 
acquire  more  land  than  is  absolutely  necessary.  In  theory  this 
should  work  to  the  city's  advantage,  and  the  estimates  often 
do  show  that  the  sale  of  the  surplus  land  should  be  sufficient  to 
pay  for  acquiring  the  lands  needed  for  the  streets.  In  practice 
this  seldom  results,  for,  as  has  been  said,  the  city  buys  at  the 
highest  price  and  sells  at  the  lowest. 

The  money  for  the  acquisition  of  land  for  streets  in  the  first  cost  of 

streets 

instance  is  ordinarily  raised  by  issuing  bonds,  and  the  interest 
and  capital  of  these  bonds  is  paid  by  general  taxation.  Actually, 
however,  the  property  abutting  on  the  new  street  is  revalued  by 
the  assessors  so  that  an  attempt  is  made  to  compel  the  abutters 
to  pay  a  large  part  of  the  cost  of  obtaining  the  street.  There  is 
a  rather  good  reason  for  this ;  without  doubt  the  building  of  a 
street  through  private  property  enhances  the  value  of  the  prop- 
erty, inasmuch  as  it  makes  it  accessible.  Outside  of  New  Eng- 
land the  cost  of  making  and  paving  the  street  is  also  usually 
assessed  upon  the  adjacent  property  owners,  although  street 
repairs  are  met  by  the  ordinary  municipal  budget.  In  New 
England  the  cost  of  the  street  pavements  is  commonly  borne  by 
the  city,  although  sidewalk  construction  is  paid  for  in  part  by 
assessing  the  abutters.  In  cities  having  over  30,000  population 
more  than  $65,000,000  was  spent  for  highways  in  191 9 — an  in- 
crease of  more  than  30  per  cent^  over  the  previous  decade.  As 
might  be  expected.  New  York  City  expended  more  than  any 
other  city  ($12,092,927)  ;  but  Pittsburgh,  spending  a  little 
more  than  $2,000,000,  had  the  greatest  per-capita  expense 
($3-59)  of  any  city  having  a  population  of  over  500,000.    In 

1  Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statistics 
of  Cities  (1919),  p.  78. 


500      STATE  AND  MUNICirAL  GOVERNMENT 


Classifica- 
tion of 
streets 


Special 
problems 
connected 
with 
streets  : 
(i)  Width 


cities  of  the  second  class  Buffalo  laid  out  the  greatest  amount 
($1,725,901)  and  also  had  the  highest  per-capita  cost  ($3.47).^ 

Streets  should  be  classified  if  the  problems  connected  with 
their  construction,  pavement,  and  maintenance  are  to  be  dealt 
with  intelligently.-  This  classification  may  be  started  as  a  part 
of  a  comprehensive  city  plan  or  it  may  be  applied  to  particular 
streets  newly  constructed.  For  example,  a  comprehensive  city 
plan  would  provide  for  certain  streets  which  should  be  devoted 
to  retail  trade,  others  for  manufacturing ;  certain  streets  would 
be  the  main  arteries  of  communication,  while  others  would  be 
residence  streets ;  finally,  certain  streets  might  be  devoted  to 
drives  and  parks.  The  purpose  for  which  a  street  is  to  be  used 
determines  in  large  measure  its  width,  construction,  and  pave- 
ment. For  illustration,  a  newly  opened  street  may  be  regarded 
as  a  pleasure  drive  with  a  suitable  construction  and  pavement, 
while  at  great  expense  a  city  may,  through  the  wholesale  district, 
open  an  artery  to  the  terminals  or  water  front  which  would  be 
constructed  and  paved  in  an  entirely  different  way.  Another 
method  by  which  classification  is  sometimes  accomplished  is 
through  a  zoning  ordinance.  By  this  ordinance  certain  sections 
of  the  city  are  devoted  to  manufacturing  purposes,  certain 
others  to  retail  trade,  others  to  residences.  Most  zoning  laws 
as  a  rule  regulate  the  height  of  the  buildings  and  sometimes  the 
proportions  of  the  lot  they  may  occupy.  These  regulations  have 
great  effect  in  determining  the  character  of  the  street.  Once 
the  character  of  the  streets  of  a  city  has  been  fixed  by  a 
zoning  ordinance,  they  automatically  become  classified  and 
the  problems  of  construction,  pavement,  and  maintenance  are 
arranged  more  easily. 

No  two  classes  of  streets  serve  exactly  the  same  purpose. 
Thus  a  street  devoted  largely  to  retail  trade  must  be  broad 
enough  to  bear  at  least  two  lines  of  surface  cars  and  two  lines 
of  vehicular  traffic,  besides  allowing  for  at  least  two  lines  of 
standing  vehicles   along   the   curbs;    moreover,   the  sidewalks 


1  Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statistics 
of  Cities  (iqiq),  p.  204. 

-See  W.  H.  Munro,  Principles  and  Methods  of  Municipal  Administra- 
tion, pp.  78-80. 


CONVENIENCE  501 

must  be  sufficiently  wide  to  bear  the  traffic  of  the  large  number 
of  pedestrians  patronizing  the  shops.  Such  a  street  presents  a 
very  different  problem  from  a  street  in  the  wholesale  district, 
where  surface  cars  become  a  nuisance,  sidewalks  should  be  de- 
signed to  facilitate  the  transfer  of  merchandise  from  the  trucks 
to  the  warehouses,  and  provision  should  be  made  for  parking 
the  trucks  at  right  angles  to  the  buildings.  The  entire  problem 
of  street  widths  is  most  complicated,  but  it  has  been  worked 
out  with  considerable  accuracy  by  engineers.^  If  the  street  is 
unnecessarily  wide  for  the  purpose  for  which  it  is  designed,  the 
taxpayers  are  deprived  of  valuable  property  which  might  con- 
tribute large  sums  to  the  city  treasury.  If,  on  the  other  hand, 
the  streets  are  too  narrow  traffic  becomes  congested,  communi- 
cation difficult,  and  the  value  of  the  adjacent  property  is 
thereby  diminished. 

In  cities  w^hich  have  adopted  a  comprehensive  zoning  ordi-  (2)  Restric- 

1       .  .       tions  on 

nance  private  property  is  subject  to  severe  and  minute  restnc-  adjacent 
tions.  Even  where  such  ordinances  have  not  been  adopted,  a  P''°P^'''^y 
building  line  is  frequently  fixed  beyond  which  the  owner  may 
not  build.  Experience  has  shown  the  necessity  for  some  restric- 
tions. If  the  property  owners  on  narrow  streets  are  allowed 
to  utilize  their  property  to  the  full  extent  for  the  erection  of 
lofty  buildings,  both  they  and  their  neighbors  are  deprived  of 
light,  and  the  street  becomes  dark  and  congested  with  the 
multitude  of  people  occupying  the  buildings.-  To  prevent  this 
property  owners  are  restricted  in  two  ways :  the  height  is  fixed 
beyond  which  buildings  may  not  be  erected,  or  (a  more  modern 
way)  the  property  holder  is  allowed  to  utilize  the  whole  or  cer- 
tain portions  of  his  property  for  buildings  of  a  specified  height, 
but  above  this  fixed  height  the  area  of  the  building  must  diminish. 
This  not  only  limits  the  population  of  the  building  but  insures 
a  more  nearly  adequate  supply  of  light  and  air  in  the  street. 

^See  W.  B.  Munro,  Principles  and  Methods  of  Municipal  Adminis- 
tration, pp.  80-85,  with  references  and  footnotes  showing  the  generally 
accepted  widths. 

-When  it  is  remembered  that  some  of  the  large  office  buildings  in 
New  York  have  a  population  of  thousands  (more  than  some  small  cities) 
who  twice  a  day  utilize  the  narrow  street  some  idea  of  this  congestion 
may  be  obtained. 


502      STATE  AND  MUNICIPAL  GOVERNMENT 


Methods 
of  street 
construc- 
tion and 
pavements 


Street 
pavements 


After  the  land  has  been  acquired  for  the  street  there  are  two 
methods  in  common  use  for  the  construction  of  the  street  or 
its  pavement.  The  first  may  be  called  the  direct  method.  By 
this  the  city  department  itself  performs  the  work;  that  is,  the 
engineering  department  prepares  the  plans  and  supervises,  while 
the  city  laborers  actually  carry  on  the  work.  The  other  method 
is  through  contract,  by  which  the  engineering  or  the  street 
department  prepares  a  contract  for  the  construction  and  pave- 
ment and  contractors  bid  upon  the  work.  Theoretically  the 
contractor  offering  the  lowest  figures  receives  the  contract. 
There  are  advantages  and  defects  in  both  systems.  The  con- 
tract system  is  probably  quicker  and,  if  honestly  administered, 
cheaper.  Unfortunately  it  has  been  found  that  the  contract  sys- 
tem is  often  dishonestly  managed.  Even  where  this  system  is 
uprightly  conducted,  city  officials  are  prone  to  safeguard  their 
actions  by  making  themselves  the  final  judge  of  all  controver- 
sies, and  all  contractors  alike  raise  their  bids  proportionately  in 
order  to  cover  such  contingencies.  Street  construction  by  the 
direct  system  is  probably  more  expensive  because  the  city  as  a 
rule  pays  its  laborers  higher  wages  than  do  private  contractors. 
Moreover,  the  city  usually  pays  a  higher  price  for  supplies  and 
materials  than  do  the  contractors.  There  is  less  likelihood  of 
poor  work  resulting  from  fraud  under  the  direct  system,  al- 
though the  municipal  laborer  is  notoriously  inefficient.  From 
one  point  of  view  the  direct  system  has  decided  advantages — 
it  may  furnish  employment  for  numbers  of  unskilled  laborers 
in  the  city,  and  in  so  doing  it  acts  as  a  species  of  out-of-door 
poor  relief.  Experience  has  shown  that  whatever  value  this 
type  of  labor  has  from  the  sociological  point  of  view,  it  cannot 
be  defended  from  the  economic  standard.  The  question  of  the 
direct  system  as  opposed  to  the  contract  applies  not  simply  to 
the  building  of  streets  but  to  the  construction  and  repair  of  all 
the  public  utilities  discussed  in  this  chapter.  No  definite  an- 
swer can  be  given  as  to  the  relative  merits  of  either  system. 
Even  the  statistics  are  of  doubtful  value  and  the  practice  of 
different  cities  extremely  varied. 

The  pavement  of  the  street  should  be  determined  by  the  pur- 
pose for  which  the  street  is  used.     There  is  no  best  pavement 


CONVENIENCE  503 

for  all  streets.  Streets  in  the  wholesale  business  district,  which 
carry  the  burden  of  heavy  trucks,  should  have  a  durable 
pavement  in  order  to  withstand  the  hard  use  to  which  it  is 
subjected.  For  this  purpose  grouted  granite  blocks  set  in  a 
cushion  of  sand  laid  on  a  concrete  foundation  is  probably  the 
best  type.  It  is  practically  indestructible,  is  not  slippery,  and 
can  be  kept  comparatively  clean  without  undue  expense.  The 
great  disadvantage  is  that  it  is  noisy  and,  no  matter  how  well 
the  blocks  are  laid,  slightly  uneven.  For  the  purpose  of  retail 
or  residence  streets  granite  blocks  would  be  out  of  place  on 
account  of  the  noise  and,  particularly,  because  of  the  expense. 
For  retail-business  streets  pavements  of  vitrified  brick  or  chemi- 
cally treated  wood  have  been  found  extremely  satisfactory. 
They  rank  next  to  granite  blocks  in  durability  and  cleanliness 
and  are  safer  than  the  sheet  asphalt  which  is  found  in  so  many 
cities.  Perhaps  the  most  popular  pavement  for  business  streets 
is  sheet  asphalt  laid  upon  a  foundation  of  crushed  stone.  This 
is  easily  cleaned  and  cheap  to  lay,  but  it  is  not  particularly 
durable,  is  the  most  slippery  of  all  pavements,  and  is  not  easy 
to  repair.  It  is,  moreover,  extremely  noisy.  A  generation  ago 
the  most  popular  pavement  for  residence  streets  and  for  con- 
necting highways  was  water-bound  macadam.  This  consists  of 
a  series  of  layers  of  crushed  rock  carefully  rolled  together.  The 
development  of  the  motor  car,  with  its  pneumatic  tires,  has 
rendered  this  type  of  pavement  unsatisfactory.  A  variant  of 
this  pavement,  which  is  often  used  in  resident  districts  and  on 
connecting  highways,  consists  of  an  ordinary  macadam  founda- 
tion on  which  is  spread  a  comparatively  thin  layer  of  crushed 
stone  treated  with  some  asphalt  composition.  This  makes  a 
waterproof  pavement,  almost  as  noiseless  as  the  old  macadam 
and  less  liable  to  be  cut  to  pieces  by  the  pneumatic  tires  of 
motor  vehicles.  In  some  sections  of  the  country  the  use  of  con- 
crete for  street  pavement  has  been  tried  with  considerable  suc- 
cess. The  expense  of  paving  and  keeping  in  repair  the  miles  of 
city  streets  is  enormous,  and  repairs  on  any  type  of  pavement 
are  both  unsatisfactory  and  expensive.  It  frequently  happens, 
therefore,  that  the  cheapest  pavement  in  the  end  is  one  of  the 
most  expensive  pavements  to  lay;   for  example,  water-bound 


504      STATE  AND  MUNICIPAL  GOVERNMENT 


Cost  of  con- 
struction of 
pavements 


Sidewalks 


macadam  is  the  cheapest  to  lay,  but  is  the  least  durable  of 
all  pavements.  As  the  result  of  experience  cities  are  learn- 
ing to  spend  more  money  upon  the  original  cost  of  the  pave- 
ments, hoping  that  the  durability  will  compensate  for  this 
increased  expense.^ 

In  New  England  the  greater  part  of  the  cost  of  the  street 
paving  is  paid  for  by  issuing  bonds.  Since  pavements  are  con- 
sidered as  more  or  less  permanent  improvements,  the  cities  are 
allowed  to  issue  long-term  bonds,  and  in  many  instances  the 
pavements  have  been  obliged  to  be  renewed  before  the  bonds 
have  expired.  The  maximum  term  for  pavement  bonds  required 
by  Massachusetts  law  is  ten  years,  but  this  is  too  long  a  term 
for  bonds  issued  to  pay  the  cost  of  macadam  or  asphalt  paving 
and  too  short  for  granite  or  wooden  paving. 

The  construction  of  sidewalks  is  ordinarily  assessed  upon  the 
abutter,  although  in  some  New  England  cities  the  expense  is 
divided  between  the  abutter  and  the  city.  Why  there  should 
be  a  distinction  between  the  pavement  of  the  highways  and 
the  construction  of  the  sidewalks  is  hard  to  see,  for  although  the 
community  as  a  whole  is  apparently  more  benefited  by  the 
pavement  of  the  highway,  the  abutter  actually  reaps  almost 
as  much  advantage.  The  chief  problem  connected  with  side- 
walks is  their  width.  The  character  of  the  street  should  deter- 
mine such  a  question.  Streets  in  the  wholesale  district  demand 
a  maximum  of  road  area  and  a  minimum  of  sidewalk  area. 
In  the  retail  districts  the  sidewalks  of  necessity  must  be  wide 
enough  to  carry  the  crowded  traffic  of  shoppers.  In  residential 
districts  the  sidewalk  itself  may  be  narrowed  and  a  strip  de- 
voted to  grass,  trees,  or  llowers.  Between  the  sidewalk  and 
the  road  is  usually  found  a  curbing.  Originally  this  was  gran- 
ite, but  with  the  use  of  granolithic  and  concrete  it  is  frequently 
made  of  some  artificial  stone.  The  sidewalk  itself  may  be  con- 
structed of  anything  from  gravel  to  artificial  stone.  In  northern 


'See  W.  R.  Miinro,  Princiiiles  and  Methods  of  Municipal  Adminis- 
tration, pp.  loi-iio,  witii  rcfcrcncx'S  to  authorities,  and  p.  lo,?,  where  is 
presented  a  table  in  which  pavements  arc  arranged  in  their  approximate 
order  of  desirability  from  the  points  of  view  of  economy  in  construction, 
economy  in  repair,  rlurahiiily,  cleanlinrss,  noiselessness,  and  safety. 


CONVENIENCE  505 

climates  snow  and  frost  make  gravel  walks  unsatisfactory,  while 
excessive  rainfall  in  other  regions  renders  them  disagreeable. 
Formerly  brick  was  both  the  cheapest  and  the  most  popular 
material  for  sidewalks,  but  this  is  rapidly  losing  its  popularity 
because  it  is  difficult  to  clean  and  in  northern  climates  becomes 
extremely  slippery  in  winter.  The  most  popular  sidewalk  pave- 
ment today  is  that  of  some  artificial  stone  in  which  cement  is 
the  chief  factor. 

3.  Water 

The  water  supply  of  a  city  is  of  vital  importance.  Not  only  importance 
is  the  city's  health  in  a  large  degree  dependent  upon  an  abun-  ^ater 
dant  supply  of  pure  water  for  drinking  and  cooking  purposes,  supply 
but  the  health  and  comfort  of  the  citizens  are  largely  affected 
by  the  abundance  of  the  water  supply  for  both  municipal  and 
personal  cleanliness.  A  city  possessing  a  supply  of  water  which 
is  sufficient  to  furnish  even  the  poorest  persons  with  an  ade- 
quate quantity  for  household  and  personal  cleanliness  and,  at 
the  same  time,  to  insure  proper  street-cleaning  is  in  a  far  more 
healthy  condition  than  one  which  is  niggardly  with  its  water. 
The  fire  department  as  well  as  the  health  department  may 
make  large  demands  upon  the  city's  water  supply.  The  water 
supply,  moreover,  must  be  both  adequate  and  satisfactory  to 
the  industries  of  the  city.  Certain  industries  require  far  more 
water  than  others ;  certain  other  industries  require  that  the 
water  should  be  soft  rather  than  hard.  Thus  the  water  supply 
of  a  city  may  not  only  determine  the  health  but  to  a  large 
degree  the  industrial  development  of  the  city. 

Theoretically  a  city  should  possess  a  water  supply  which  is  Requisites 
sufficient  in  quantity,  without  color,  taste,  or  odor,  both  chemi-  supply T^  " 
cally  and  bacteriologically  pure,  and  of  suitable  texture.^    The 
quantity  of  water  necessary  for  a  city  depends  upon  many  fac-  (i)  Quantity 
tors.    In  European  cities  the  average  per-capita  amount  sup- 
plied is  about  40  gallons  per  day,  but  in  the  United  States  the 

iSee  Allen  Hazen,  Clean  Water  and  How  to  Get  It;  G.  C.  Whipple, 
The  Value  of  Pure  Water.  W.  B.  Munro's  "Principles  and  Methods  of 
Municipal  Administration,"  chap,  iv,  contains  an  excellent  brief  treat- 
ment of  the  problems  connected  with  the  water  supply. 


5o6      STATE  AND  MUNICIPAL  GOVERNMENT 

daily  per-capita  consumption  of  water  varies  from  loo  to  200 
gallons.  The  daily  use  of  water  for  municipal  purposes  in  most 
American  cities  is  about  10  gallons  per  capita;  for  domestic 
purposes  between  15  and  40  gallons  per  capita  a  day  is  gen- 
erally allowed,  although  the  average  is  quite  generally  below 
40  gallons;  industry  and  trade  take  from  20  to  40  gallons  a 
day,  dependent  upon  the  character  of  the  industry.  With  these 
maximum  figures,  there  is  left  a  daily  wastage  of  about  10 
gallons  per  capita.  Part  of  this  is  lost  through  faulty  joints  in 
the  water-mains,  more  through  defective  plumbing,  but  a  still 
greater  amount  through  sheer  carelessness  or  intentional  waste. 
At  one  time  in  Boston,  when  only  about  60  per  cent  of  the  serv- 
ice was  metered,  the  maximum  consumption  came  during  the 
night  hours  of  the  coldest  period  in  the  winter,  thus  showing 
that  the  householders  had  intentionally  opened  their  faucets  in 
order  to  avoid  the  danger  of  freezing  their  pipes.  In  Cleve- 
land, on  the  contrary,  where  practically  the  whole  service  is 
metered,  the  greatest  consumption  comes  during  the  day  hours 
of  the  warm  summer  months.^  When  it  is  remembered  that 
water  is  a  commodity  increasingly  expensive  to  supply,  the 
necessity  for  economy  or  at  least  for  avoidance  of  waste  is  seen. 
Much  may  be  done  in  this  direction  if  a  larger  part  of  the 
service  is  metered,  but  water  meters  represent  heavy  first  ex- 
pense and  are  easily  thrown  out  of  order.  What  should  be  the 
proper  quantity  of  water  for  any  individual  city  cannot  be 
definitely  stated.  In  providing  for  the  water  supply  of  a  city 
it  is  wise  to  take  a  figure  of  not  less  than  100  gallons  per  capita 
each  day  and  to  estimate  for  at  least  thirty  years  of  normal 
growth.  The  reason  for  this  will  be  more  clear  when  water 
finance  is  explained.- 
(2)  Appear-  The  consumers  of  water  generally  demand  that  water  should 
be  clear  and  without  odor  or  taste.  It  is  true  that  turbid 
water  may  be  entirely  healthful,  and  some  supplies  are  not 
unhealthful  which  have  both  a  slight  odor  and  taste.  These, 
however,  are  not  satisfactory  to  ordinary  consumers,  who  are 

^See  W.  B.  Munro,  Principles  and  Methods  of  Municipal  Administra- 
tion, p.  1,38. 

-Sec  pa>j;c  510. 


ance 


CONVENIENCE  507 

more  particular  along  these  lines  than  they  are  concerning  the 
chemical  and  bacteriological  purity  of  the  water. 

A  proper  water  supply  should  be  soft.  Hard  water  not  only  (3)  Texture 
deposits  its  salts  in  the  various  utensils  but  also  requires  the 
use  of  a  greater  amount  of  soap.  For  a  single  family  this  may 
seem  to  be  but  a  small  item,  but  when  this  additional  cost 
continues  for  years  and  is  multiplied  by  the  constantly  increas- 
ing population,  it  is  evident  that  a  city  which  supplies  hard 
water  is  not  fulfilling  its  proper  function.^  Among  the  cities 
which  soften  the  water  before  delivering  it  to  the  consumer 
are  Columbus,  New  Orleans,  and  St.  Louis. 

The  city  water  should  be  pure  and  free  from  chemicals ;  (4)  Purity 
still  more  important  is  its  bacteriological  purity.  The  city's 
water  supply  may  become  the  greatest  carrier  of  disease  germs, 
and  widespread  epidemics  have  been  traced  to  the  infection  of 
the  water  supply.  The  city  is  engaged  in  a  constant  struggle 
to  obtain  and  to  maintain  the  purity  of  its  water. 

The  cities  in  the  United  States  get  their  water  supply  from  sources  of 
four  types  of  sources.-  A  few  middle-sized  cities  and  many  supply 
small  cities  derive  their  supply  of  water  from  ground  waters; 
that  is,  by  wells  driven  to  the  water-bearing  strata.^  Such 
water  may  be  reasonably  pure  but  is  apt  to  be  too  hard  for  do- 
mestic use.  A  greater  number  of  middle-sized  and  larger  cities, 
including  New  York  and  Boston,  obtain  their  supply  from  im- 
pounded waters  ;  that  is,  a  river  or  a  river  system  is  diverted 
into  a  reservoir  or  artificial  lake,  which  is  partly  filled  by  the 
rivers  and  partly  by  the  natural  drainage  of  the  watershed. 
The  purity  of  such  a  water  supply  depends  almost  entirely 
upon  the  vigilance  with  which  the  watershed  and  the  supplying 
streams  are  inspected  and  protected  from  contamination. 

'See  W.  B.  Munro,  Principles  and  Methods  of  Municipal  Adminis- 
tration, p.  140,  quoting  from  G.  C.  Whipple,  The  Value  of  Pure  Water, 
where  it  is  figured  that  the  soap  wastage  from  hard  water  is  between  $7 
and  $&  per  1,000,000  gallons. 

2  See  Department  of  Commerce,  Bureau  of  the  Census,  General  Statis- 
tics of  Cities  (1915),  pp.  41-47;  also  W.  B.  Munro,  Principles  and 
Methods  of  Municipal  Administration,  pp.  131-132. 

3 Lowell,  Massachusetts;  Canton,  Ohio;  Memphis,  Tennessee;  and  San 
Antonio,  Texas. 


purification 


508      STATE  AND  MUNICIPAL  GOVERNMENT 

Probably  many  more  cities  obtain  their  water  from  lakes — 
Chicago,  Cleveland,  Buffalo,  and  other  cities  upon  the  Great 
Lakes  draw  their  supply  from  this  source,  through  intakes  set 
four  or  five  miles  from  the  shore.  Although  many  of  the  same 
cities  discharge  their  sewage  into  the  lakes,  the  quantity  of 
water  is  so  great  that  there  is  sufficient  dilution  to  prevent  con- 
tamination. Some  of  the  largest  cities  get  their  water  supply 
from  rivers.  Among  these  may  be  mentioned  Philadelphia,  St. 
Louis,  New  Orleans,  and  Washington.  From  these  large  rivers 
the  water  supply  is  comparatively  pure,  but  safety  is  assured 
by  means  of  filtration.  Often,  however,  supplies  from  rivers 
are  turbid  in  color.  Water  taken  from  lakes,  particularly  if 
these  are  shallow  or  small,  must  be  carefully  inspected. 
Water  In  many  cities  the  water  supply  is  examined  and  checked  up 

at  frequent  intervals  (sometimes  daily)  by  the  board  of  health 
in  order  that  the  purity  of  the  supply  may  be  maintained  and 
that  the  bacteriological  count  may  not  reach  dangerous  pro- 
portions. Cities  which  derive  their  water  from  rivers  or  lakes 
are  frequently  compelled  to  install  filtration  or  purification 
plants.  Purification  of  water  is  accomplished  in  various  ways ; 
the  most  common  methods  are  by  chemicals  and  by  filtration.^ 
The  chemical  method  consists  in  sterilizing  the  water  by  means 
of  hypochlorides  of  lime  or  soda.  This  renders  the  water  abso- 
lutely sterile  of  all  objectionable  bacteria.  It  is  thus  an  excel- 
lent method  in  an  emergency,  and  not  a  few  cities  depend  upon 
it  entirely.  The  other  method  most  commonly  used  is  through 
filtration,  by  which  the  water  is  allowed  to  penetrate  through 
beds  of  coarse  sand ;  the  particles  of  sand  become  coated  with 
a  slimy  deposit  which  purifies  the  water  in  its  passage  through 
the  filter.  This  type  of  slow  sand-filter  can  be  operated  after 
construction  at  a  cost  of  about  Sio  per  1,000,000  gallons,  or 
30  cents  annually  for  each  inhabitant.-  This  method  is  em- 
ployed in  Albany,  Philadelphia,  Pittsburgh,  and  Washington. 
The  rapid  sand-filter  used  in  Cincinnati  and  Columbus  is  of  a 
different   type.    Here   the  water   is   first  allowed   to   stand  in 

^See  Allen  Hazen,  Clean  Water  and  How  to  Get  It. 
^Sec  VV.   M.   Munru,  Principles  and  Methods  of   Municipal  Adminis- 
tration, p.  147. 


CONVENIENCE  509 

storage  reservoirs  for  the  sake  of  removing  the  sediment  fre- 
quently found  in  river  waters.  The  water  is  then  pumped  at  a 
pressure  through  coarse  sand-filters.  This  system  is  slightly 
more  expensive  to  operate  but  cheaper  to  install,  and  there  is 
very  little  difference  in  the  per-capita  cost  to  the  inhabitants. 
When  used  in  connection  with  the  storage  reservoirs,  the  rapid 
sand-filter  has  the  advantage  of  removing  the  turbidity  of  the 
water,  and  it  is  more  easily  cleaned. 

Although  originally  the  franchise  to  supply  water  to  many  Public  and 
cities  was  granted   to  private  companies,   the  whole   modern  suppHes 
tendency  is  toward  both  municipal  ownership  and  operation  of  °*  ^*^^'' 
the  city  water  supply.    Indeed,  this  is  as  it  should  be,  for  the 
health  and  safety  of  the  city  are  so  dependent  upon  the  quality 
and  quantity  of  its  water  supply  that  no  question  of  private 
profit  should  be  allowed  to  enter  into  the  problem.    Moreover, 
an  adequate  supply  of  water  for  a  growing  city  is  an  extremely 
expensive  undertaking,  and  few  private  corporations  would  be 
willing  to  sink  the  amount  of  capital  necessary  to  guarantee  a 
sufficient  supply  for  the  increasing  needs.    Also,  as  will  be  seen  in 
the  discussion  of  water  finance,  the  price  charged  for  the  water 
should  not  be  so  high  as  to  limit  its  necessary  and  proper  use. 

In  most  American  cities  the  water  departments  are  under  water 
the  control  of  a  board,  generally  appointed  by  the  mayor.    But  mi'nts^ 
in  the  largest  city — New  York — a  single  commissioner  pre-  (i)  Organi- 

73.tiOTl 

sides  over  the  departments  of  water,  gas,  and  electricity,  while 
in  Boston  the  commissioner  of  public  works  takes  charge  of  the 
streets,  sewers,  bridges,  and  water  distribution.  INIuch  can  be 
said  in  favor  of  the  board  organization,  for  the  problems  con- 
nected with  the  water  supply  are  not  only  so  technical  as  to 
necessitate  the  employment  of  an  expert  but  also  deal  with 
questions  of  policy  which  popular  opinion  feels  should  be  deter- 
mined by  a  group  rather  than  by  a  single  individual.  Whether 
the  water  department  is  separate  or  merged  with  other  depart- 
ments, it  always  forms  a  special  bureau  and  employs  or  should 
employ  a  number  of  technical  experts. 

The  functions  of  the  water  department  are  most  varied.  (2)  Func- 
Primarily  they  are  engineering  problems  dealing  with  the  con- 
struction of  the  pumping  stations  or  the  erection  of  dams  for 


510     STATE  AND  MUNICIPAL  GOVERNMENT 

the  reservoirs,  the  laying  of  the  water-mains,  and  so  forth.  The 
purity  of  the  water  supply,  however,  requires  expert  bacteri- 
ologists or  water  engineers  and  not  infrequently  the  assistance 
of  the  legal  department  to  enforce  the  necessary  regulations. 
When  it  is  remembered  that  the  water  supply  of  most  cities 
is  a  manufactured  product  in  which  several  or  many  processes 
are  involved,  and  which  is  sold  in  greater  quantities  than  any 
other  manufactured  product,  the  business  side  of  the  water 
department  becomes  important.  It  is  perhaps  at  this  point 
that  the  board  organization  shows  its  greatest  advantages. 
Questions  of  the  extension  of  the  water  supply  or  water  service, 
questions  of  water  rates  and  regulations,  meet  with  less  criticism 
when  determined  by  a  board  than  by  a  single  commissioner. 
Finally,  the  amount  of  capital  sunk  in  municipal  waterworks 
is  enormous,  and  the  financial  administration  of  the  invested 
capital,  the  fixed  charges,  and  the  collection  of  the  rates  is 
a  department  in  itself.  In  small-sized  cities  many  of  these 
functions  may  be  performed  by  other  officials. 
Water  The  total  amount  of  money  invested  in  the  water  supply 

systems  in  cities  of  over  30,000  population  was  placed  in  19 19 
at  $1,257,831,733  for  land,  buildings,  and  equipment.^  The 
same  cities,  moreover,  had  incurred  a  debt  for  the  water  supply 
systems  amounting  to  nearly  $600,000,000.'-  These  figures, 
large  as  they  are,  are  increasing  at  the  rate  of  about  $50,000,000 
a  year.  In  general  cities  have  financed  the  water  supply  by 
means  of  long-term  bonds.  Little  objection  can  be  taken  to  this 
method,  inasmuch  as  the  water  supply  is  considered  the  most 
constant  source  of  income  and  the  safest  investment  for  munici- 
palities to  engage  in.  The  former  way  was  to  provide  a  sinking 
fund  for  redeeming  the  bonds  at  maturity,  but  the  more  modern 
method  is  to  issue  serial  bonds  whose  redemption  should  begin 
a  few  years  after  the  system  has  been  put  into  operation. 
Extensions  and  improvements  to  the  system  should  be  paid  for 
either  from  the  surplus  of  the  sale  of  the  water  or  by  taxa- 
tion, unless  such  extensions  involve  acquiring  a  supplementary 
water  supply. 

^Sec    Department    of    Commerce,    Bureau    of    (he    Census,    Financial 
Statistics  of  Cities  (igio),  p.  2gi.  -Ibid.  p.  303. 


CONVEX  lENCE  511 

The  question  of  the  rate  which  should  be  charged  the  con-  water 

,  .  ,    rates 

sumer  is  complicated.  Various  methods  are  m  vogue  which 
are  so  different  that  it  is  hard  to  find  a  basis  of  comparison. 
]\Iuch  can  be  said  in  favor  of  the  meter  system,  which  auto- 
matically puts  a  check  upon  the  w^aste  of  water  and  which,  if 
an  adequate  minimum  is  allowed  to  the  consumer  at  a  fixed 
rate,  will  prevent  improper  economy.  What  the  rate  should 
be  is  partly  a  financial  and  partly  a  sociological  question.  From 
the  financial  point  of  view  the  rate  should  be  high  enough  to 
yield  a  sufficient  income  to  pay  the  annual  interest  and  to 
redeem  a  certain  portion  of  the  bonds  each  year.  In  addition 
the  system  should  be  self-supporting ;  that  is,  it  should  yield  a 
sufficient  income  to  pay  not  only  for  its  running  expenses  but 
for  its  upkeep.  There  seems  no  adequate  reason  why  water 
should  be  freely  given  to  the  various  departments  of  the  city, 
such  as  the  park  and  street-cleaning  departments.  Such  de- 
mands make  water  iinance  difficult  to  calculate.  Although  it 
may  be  only  a  matter  of  bookkeeping,  the  water  department 
should  receive  compensation  at  a  fixed  rate  for  all  the  water 
it  supplies.  On  the  other  hand,  the  hygienic  and  social  value 
of  a  copious  supply  of  w^ater  is  so  great  that  the  rates  should 
not  be  raised  to  the  extent  of  preventing  such  use.  Water 
should  be  neither  given  away  nor  sold  at  a  profit. 

4.    Wastes 
ISIunicipal  sanitation  depends  not  simply  on  the  supply  of  importance 
pure  water  but  on  the  disposal  of  the  wastes  of  a  city.    This  lem  of  dis- 
is  peculiarly  a  municipal  problem,  for  the  massing  together  of  ^°|g^\f 
large  populations  in  a  small  area  leads  to  the  production  of 
dangerous  waste  products  which  in  a  larger  area  would  almost 
take  care  of  themselves.    The  amount  of  the  wastes  of  a  city 
is  prodigious.    It  has  been  estimated  that  in  a  large  city  this 
probably  exceeds  a  ton  per  day  for  every  head  of  the  popula- 
tion.^   Although  much  of  this  is  in  the  form  of  sewage,  yet  a 
large  part  must  be  collected  from  various  sources  and  disposed 
of  in  various  ways. 

iW.  B.  Munro,  Principles  and  Methods  of  Municipal  Administration, 
p.  168. 


512      STATE  AND  MUNICIPAL  GOVERNMENT 

ciassiflca-         The  wastes  of  a  city  are  generally  classified  under  five  main 

thTdty's     heads.^    The  least  harmful  waste  is  the  ashes  which  are  the 

wastes:        product  of  commercial  and   household   furnaces.     These  are 

^  ^^      practically  free  from  all  sources  of  contagion,  but  must  not  be 

allowed  to  accumulate.    Next  to  the  sewage  they  are,  perhaps, 

the  bulkiest  of  the  wastes.    In  many  cities  their  collection  and 

disposal  is  left  to  private  initiative,  but  in  the  larger  cities  this 

is  done  either  by  some  city  department — street-cleaning  or 

board  of  health — or  it  is  let  out  to  some  contractor.    The  use 

of  ashes  is  limited  chiefly  to  filling  in  and  reclaiming  unusable 

ground.     Unless  the  municipality  owns  such  land  and  may 

recoup  itself  by  the  sale  of  the  reclaimed  area,  the  collection 

and  disposal  of  ashes  constitutes  a  fixed  charge,  either  upon 

the  householder  or  upon  the  municipal  treasury. 

(2)  Rubbish       Rubbish  comprises  the  miscellaneous  assortment  of  inorganic 

substances  which  accumulates  in  a  great  city — paper,  boxes, 
rags,  bottles,  tin  cans.  It  contains  no  decomposable  matter, 
and  for  the  most  part  can  be  easily  consumed.  Two  methods 
have  been  devised  for  dealing  with  rubbish.  By  the  incinera- 
tion method  the  rubbish  is  burned  under  forced  draft  and  is 
sometimes  used  to  operate  a  municipal  pumping  or  lighting 
station.  Since,  however,  it  takes  from  five  to  seven  tons  of 
rubbish  to  equal  a  single  ton  of  coal,  the  daily  supply  of  this 
waste  must  be  large  in  order  to  operate  a  municipal  plant  eco- 
nomically. Another  method  involves  a  sorting  process.  Rubbish 
contains  many  articles  of  commercial  value  which  may  be 
picked  out  of  the  general  mass  and  sold.  The  remainder  must 
be  disposed  of  by  dumping  on  waste  ground,  by  burning,  or, 
in  coast  cities,  by  emptying  into  the  sea. 

(3)  Refuse         Refuse  consists  in  the  main  of  sweepings  from  the  streets 

and  buildings.  It  contains  both  organic  and  inorganic  matter 
and  is  subject  to  decomposition.  The  chief  source  of  refuse  is 
the  street  sweepings.  In  former  days  this  had  considerable 
theoretical  value  as  a  fertilizer,  but  the  cost  of  collection  and 
transportation   far  exceeded   the  possibility  of  obtaining  any 

^See  W.  F.  Morse,  Collection  and  Disposal  of  Municipal  Waste,  p.  13; 
also  W.  B.  Munro,  Principles  and  Methods  of  Municipal  .\dministra- 
tion,  p.  168. 


CONVENIENCE  513 

net  revenue.  With  the  introduction  and  spread  of  the  motor 
car  and  the  decline  of  the  use  of  horses  in  the  city,  street  sweep- 
ings have  still  less  value  and,  in  general,  are  treated  like  ashes. 

Garbage  is  composed  of  the  wastes  from  houses  and  hotels ;  (4)  Garbage 
it  is  chiefly  organic  matter  and  is  easily  and  quickly  liable  to 
putrefaction.  Different  cities  have  attempted  various  methods 
of  disposing  of  it.  In  rural  communities  and  in  some  cities  of 
over  100,000  population^  the  city  maintains  a  herd  of  hogs  to 
which  this  garbage  is  fed.  Such  a  herd,  however,  may  be 
malodorous  and,  as  experience  has  shown,  is  liable  to  infection. 
Some  cities  bury  the  garbage,  thus  using  it  to  fill  in  low  land ; 
other  cities-  dump  it  into  rivers  or  into  the  sea.  If  carried  a 
sufficient  distance  from  the  coast  the  latter  is  a  satisfactory 
solution  of  the  problem,  but  not  infrequently  the  wind  and  tide 
wash  portions  back  and  the  beaches  and  shellfish  beds  are 
polluted.  Another  method  of  disposal  is  incineration.  This  is 
conducted  on  a  large  scale  in  Atlanta,  Memphis,  Milwaukee, 
and  other  cities.  Attempts  have  been  made  to  utilize  the  heat  so 
generated  for  steam  power,  but  since  the  garbage  contains  a  high 
percentage  of  water  the  experiments  have  been  unsuccessful. 
A  final  method  of  garbage  disposal  is  by  reduction,  which  in- 
volves subjecting  it  to  heat  and  pressure,  thereby  extracting 
the  oil  and  grease,  which  have  some  commercial  value,  while 
the  residue  has  some  value  as  fertilizer.  The  great  difficulty 
with  the  reduction  plant  is  that  in  spite  of  all  attempts  to 
improve  it  a  malodorous  process  is  connected  with  it.  If  located 
near  a  city,  it  is  bound  to  arouse  objection ;  if  at  a  distance, 
the  expense  of  the  transportation  of  the  garbage  diminishes 
the  profits. 

5.  Sewage 

The  most  voluminous  and  most  dangerous  of  all  the  city's  character 
wastes  is  sewage.    This  is  largely  liquid  and  amounts  to  about  o°se^ge" 
one  hundred  gallons  per  capita  daily.    It  is  composed  of  the 
wastes  from  the  sinks,  washing  and  toilet  appliances  of  the 
houses  and  hotels,  and  the  wastes  from  factories,  which  not 
only  are  of  similar  character  to  the  household  sewage  but  also 

^Cambridge,  Denver,  Providence,  and  Worcester.       -New  Orleans. 


514      STATE  AND  MUNICIPAL  GOVERNIMENT 


Problem 
of  sewage 
disposal 


may  contain  a  large  proportion  of  commercial  waste,  particu- 
larly from  dyeing  plants.  A  third  kind  of  sewage  is  the  waste 
water  from  the  roofs  and  streets  of  the  city,  known  as  surface 
sewage.  Surface  sewage  in  itself  is  not  dangerous  and  can 
with  impunity  be  turned  into  any  watercourse.  The  harmless 
character  of  this  kind  of  sewage  has  led  cities,  which  are  obliged 
to  purify  the  other  kinds  of  sewage  before  discharging  it  into 
watercourses,  to  construct  separate  systems  in  order  to  take 
care  of  surface  water.  Household  and  factory  sewage  is  ex- 
tremely dangerous  to  health,  both  from  the  large  amount  of 
putrefying  matter  it  contains  and  the  possibility  of  carrying 
disease  germs. 

The  problem  of  sewage  disposal  is  distinctly  characteristic 
of  cities.  In  sparsely  settled  rural  communities  the  amount  of 
sewage  is  comparatively  so  small  that  it  can  with  safety  be 
absorbed  into  the  ground,  although  great  danger  may  come 
from  the  possibility  of  polluting  the  water  supply  drawn  from 
the  wells.  When,  however,  a  large  population  is  concentrated 
on  a  small  area  the  disposal  of  the  sewage  becomes  an  impor- 
tant question.  The  construction  of  public  sewers  did  not  begin 
in  the  United  States  until  the  nineteenth  century,  and  even 
these  were  primitive,  being  generally  constructed  of  wood. 
With  the  rapid  increase  of  city  population  in  the  nineteenth 
century  and  a  better  realization  of  the  danger  involved  in  sew- 
age, more  and  more  cities  undertook  to  construct  sewerage  sys- 
tems. The  simplest  and  easiest  method  of  disposing  of  the 
sewage  is  to  empty  it  into  some  watercourse.  Cities  situated 
upon  lakes,  rivers,  or  on  the  seacoast  have,  at  first  thought,  a 
comparatively  simple  task,  since  all  that  seems  necessary  is 
to  construct  a  drain  to  the  nearest  large  body  of  water.  But 
the  problem  is  not  so  simple.  Sewage  discharged  directly  into 
the  sea  may  be  thrown  back  on  the  city  by  the  action  of  wind 
and  tides,  and  large  municipalities  are  obliged  to  carry  their 
discharge  pipes  well  out  to  sea.  Even  then  the  risk  is  great. 
Cities  along  rivers  and  lakes  not  only  run  the  risk  of  polluting 
their  immediate  neighloorhood  but  of  spreading  this  pollution 
to  other  communities.  Theoretically  the  amounts  of  water  in 
great  lakes  or  rapidly  llowing  rivers  so  dilute  the  sewage  that 


CONVENIENCE  515 

there  is  little  danger ;  but  Chicago  found  it  advisable  to  cut  a 
great  drainage  canal  and  reverse  the  course  of  the  Chicago 
River,  causing  it  to  drain  from  Lake  Michigan  and  carry  the 
sewage  across  the  state  of  Illinois,  emptying  it  into  the  Missis- 
sippi. The  large  amount  of  water  and  the  length  of  the  canal 
probably  render  even  its  vast  amount  of  sewage  innocuous. 
Many  cities,  however,  are  obliged  to  treat  their  sewage  in  some 
way  before  discharging  it  into  watercourses. 

The  object  of  sewage  purification  is  not  to  render  the  sewage  sewage 
absolutely  pure  but  to  render  it  comparatively  inoffensive,  so  ''""  *^^  "*"' 
that  it  will  be  innocuous  to  the  water  supply.^    Five  or  six 
methods  of  treatment  have  been  devised.    The  simplest  is  by 
screening,  which  merely  serves  to  remove  the  heavier  solids  d)  screen- 
and  to  enable  the  city  to  dilute  the  remaining  amount.    This  '°^ 
does  not  pretend  to  be  a  complete  method  of  sewage  treatment. 
A  more  common  way  is  by  sedimentation.    This  consists  in  (2)  sedi- 
running  the  sewage  into  settling  tanks,  where  it  is  allowed  "®° 
to  stand  for  a  certain  number  of  hours  and  the  solid  matter  is 
precipitated.    This  precipitation  is  often  hastened  by  the  addi- 
tion of  lime  or  other  chemicals.    The  liquid  which  is  drawn  off 
in  the  sedimentation  tanks  is  comparatively  inoffensive,  but  the 
disposition  of  the  solid  "sludge"  presents  another  problem. 
In  London  this  is  carried  out  to  sea  and  dumped  overboard ; 
in  Worcester,  Massachusetts,  it  is  used  for  filling  in  low  land. 
Another  method  of  sewage  disposal  which  reduces  the  amount 
of  "sludge"  is  the  septic-tank  process.    In  this  the  sewage  is  (3)  septic- 

11  ■       •  r    1     1         T     •    •  1      1  tank  process 

allowed  to  stand  m  tanks  and  the  quantity  of  sludge  dimmished 

by  decomposition.    What  remains,  however,  must  be  removed 

from  time  to  time.    There  are  three  methods  of  filtration  of  (4)  Fiiua- 

sewage  which  have  been  tried  in  various  places.    Perhaps  the 

commonest  type  is  that  of  the  intermittent  filter.    Large  beds  (a)  By  the 

of  sand  are  prepared  over  which  the  sewage  is  allowed  to  flow ;  tent  filter 

after  it  has  filtered  through  the  sand  the  beds  must  be  allowed  (b)  By  con- 

t3.ct  beds 

to  dry.    A  second  method  of  filtration  is  by  contact  beds,  which 

lA  comprehensive  treatment  of  this  subject  is  by  Leonard  Metcalf  and 
H.  P.  Eddy,  American  Sewerage  Practice  (3  vols.),  Vol.  III.  For  a  brief 
treatment  see  W.  B.  Munro,  Principles  and  Methods  of  Municipal 
Administration,  pp.  197-206. 


5i6     STATE  AND  MUNICIPAL  GOVERNMENT 


(OBy 
sprinklers 


Sewage 
farms 


Organiza- 
tion and 
functions 
of  the  sewer 
department 


consist  of  water-tight  tanks  filled  with  coke,  slag,  or  some  other 
coarse  material,  in  which  the  sewage  is  allowed  to  stand  for 
several  hours.  This  process  renders  the  sewage  nonputrescible 
and  odorless  and  removes  about  80  per  cent  of  the  bacteria. 
The  third  filtration  method  is  the  sprinkler  system,  by  which 
the  sewage  is  pumped  through  sprinklers  or  fountains  which 
play  upon  sand-beds.  This  removes  about  90  per  cent  of  the 
bacteria,  provided  a  previous  period  of  sedimentation  is  allowed. 

An  entirely  different  method  of  sewage  disposal  is  found 
in  the  sewage  farms.  It  has  been  long  known  that  sewage  has 
a  high  fertilizing  value,  and  various  suggestions  have  been 
made,  looking  toward  its  utilization.  The  method  has  been 
worked  out  with  considerable  success  in  both  Paris  and  Berlin. 
In  the  latter  city  the  sewer  farms  are  about  forty-five  square 
miles  in  extent.  The  sewage  reaches  the  farms  through  ordi- 
nary pipes  and  then  is  pumped  into  a  standpipe  and  is  dis- 
tributed through  irrigation  ditches.  During  the  spring  and 
summer  the  system  works  very  well,  but  in  the  winter  the 
sewage  must  be  stored  in  reservoirs.  Sewage  farms  have  been 
attempted  in  the  West,  notably  at  Los  Angeles,  Pasadena,  Salt 
Lake  City,  and  Colorado  Springs,  but  in  no  case  have  they 
been  remarkably  successful. 

In  many  cities  the  administration  of  the  sewers  is  placed 
under  a  special  board.  The  same  arguments  concerning  the 
necessity  of  planning  and  of  long-time  finance  apply  to  the 
sewerage  system  as  have  been  discussed  in  connection  with 
the  water  department.  The  work  of  both  these  departments 
lends  itself  to  the  board  type  of  administration.  Whether  man- 
aged by  a  board  or  a  commissioner,  experts  of  various  sorts 
must  be  engaged.  The  construction  of  sewers  involves  far- 
sighted  plans  and  often  presents  many  difficult  engineering 
problems.  The  main  lines  of  the  sewer  must  be  large  enough 
to  care  for  the  ever-increasing  amount  of  sewage  from  a  grow- 
ing population  and  also  must  be  sufficiently  large  to  take  care 
of  any  sudden  emergency,  such  as  a  cloudburst  or  heavy  rain- 
storm. The  whole  question  of  treatment  is  an  extremely  tech- 
nical one,  which  neither  a  commissioner  nor  a  board  could 
be  supposed  to  handle  alone.     Experts   must  necessarily  be 


CONVENIENCE  517 

consulted  as  to  the  method  of  treatment  adopted,  and  after 
this  has  been  adopted  a  sewerage  engineer  must  be  engaged  to 
supervise  its  successful  operation. 

Sewers  are  in  the  nature  of  permanent  public  improvements. 
The  expense  is  so  large  that  their  construction  cannot  be  paid 
for  by  current  taxation.  Therefore  they  are  usually  financed  sewerage 
by  means  of  bonds  running  thirty,  forty,  and  even  fifty  years. 
Modern  financial  custom  advocates  the  use  of  serial  bonds  as 
opposed  to  the  sinking-fund  system.  The  disposition  of  the 
sewage  is  so  vital  to  the  health  of  the  city  that  no  attempt  is 
made  to  operate  the  system  for  profit.  In  most  cities,  however, 
a  portion  of  the  cost  of  construction  is  assessed  against  the 
property  owner,  and  the  owners  of  new  buildings  not  infre- 
quently have  to  pay  a  sewerage  entrance  fee.  From  the  very 
character  of  the  sewerage  system  it  is  one  which  lends  itself 
predominantly  to  public  control.  In  19 19  the  cities  having  a 
population  of  more  than  30,000  actually  expended  $9,035,454 
for  sewers  and  sewage  disposal.  At  the  same  time  the  combined 
debt  incurred  by  these  cities  for  this  purpose  was  $245,777,204. 
Baltimore  and  Boston  led  the  list  with  debts  of  $25,000,000 
and  $20,000,000  respectively.  Chicago  had  a  debt  of  $15,000,000 
and  Philadelphia  of  $14,000,000.  No  other  city  of  this  class 
had  had  a  debt  of  $10,000,000.^ 

6.    Public  Utilities 

The  term  ''public  utilities"  is  sometimes  used  to  describe  Definition 
the  public  services  which  are  performed  for  the  inhabitants  of 
the  city  either  by  the  city  government  itself  or  by  private  com- 
panies. Strictly  speaking,  all  the  services  which  have  been 
discussed  in  this  chapter  may  be  classified  as  public  utilities ; 
but  since  the  maintenance  of  streets,  the  water  supply,  and  the 
disposal  of  the  city's  waste  are  so  fundamental,  they  may  be 
considered  as  the  normal  and  legitimate  duties  of  any  city  gov- 
ernment. There  is  less  unanimity  of  opinion  concerning  the 
supply  of  gas,  electricity,  heat,  docks,  terminal  facilities,  market 

1  Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statistics 
of  Cities  (iqiq),  PP-  184,  302. 


51 8      STATE  AND  MUNICIPAL  GOVERNMENT 

places,  and  other  means  of  communication  or  trade.  These 
services  are  all  so  vital  to  the  welfare  and  convenience  of  the 
community  that  they  are  impressed  with  a  public  character  and 
from  the  very  earliest  times  have  been  partially  dependent  upon 
government  regulation.  Most  of  these  services  have  a  common 
characteristic.  They  require  the  use  of  the  streets  or  highways 
or  some  public  property.  The  right  to  use  this  public  property 
is  generally  expressed  in  a  charter  or  franchise.  Thus  the  so- 
called  utility  companies  depend  for  their  very  existence  upon 
a  franchise  granted  by  the  city  or  state  legislature. 
Important         One  of  the  most  important  elements  of  a  franchise  concerns 

elements  in    ^i  i  •   i  ,       •,  t     tc  r  i  •  •    • 

a  franchise:  the  power  which  grants  it.^  If  a  franchise  giving  a  private 
(i)  Au-  company  the  use  of  the  streets  of  a  city  may  be  granted  by  the 
granting  State  authorities,  the  principle  of  municipal  home  rule  is  seri- 
ously violated  and  a  most  valuable  resource  of  the  city  may  be 
given  up  without  the  consent  of  the  citizens.  On  the  other 
hand,  if  the  city  governments  are  given  freedom  in  granting 
franchises,  it  has  frequently  been  the  case  that  unscrupulous 
promoters  have  been  able  by  corrupt  means  to  obtain  grants 
for  which  they  gave  no  adequate  compensation  and  which  were 
then  beyond  the  power  of  the  city  to  control.  Too  often  a 
city  government  has  sold  its  birthright  for  a  mess  of  pottage. 
The  most  modern  method  of  granting  a  franchise  is  to  vest 
the  authority  in  the  power  of  some  commission,  dependent 
upon  approval  either  by  the  city  government  or  by  a  popular 
referendum. 
(2)  Duration  A  vital  element  in  the  franchise  is  its  duration.  Early  fran- 
chises were  frequently  granted  without  limited  time  and  thus 
in  many  communities  were  perpetuated.  The  modern  tendency 
is  to  limit  the  duration  of  the  franchise.  In  many  instances 
this  limitation  is  made  too  short.  A  private  company  will  not 
engage  in  erecting  a  plant  to  supply  a  public  utility  unless  it 
is  assured  of  a  certain  profit.  The  iirst  years  of  operation  are 
frequently  at  a  loss ;  consequently  a  sufficiently  long  time 
should  be  provided  for  by  the  franchise  so  that  the  promoters 
may  obtain  a  fair  profit  upon  their  investment.  This  period 
varies  with  the  nature  of  the  utility  and  the  character  of  the 
^See  Goodnow  and  Bates,  Municipal  Government,  pp.  382-392. 


CONVENIENCE  519 

city.  In  general  no  franchise  is  acceptable  which  runs  for  less 
than  twenty-five  years,  and  few  franchises  should  be  granted 
for  a  period  of  more  than  fifty  years. 

The  courts  have  held  that  any  business  affected  with  a  public  (3)  Reguia- 
interest  is  subject  to  public  regulation;  that  the  legislature  ^"'°°  "*^^ 
in  the  exercise  of  its  police  power  may  fix  the  rates  charged 
for  the  performance  of  such  a  service.  These  rates,  however, 
must  not  be  so  low  that  the  owner  obtains  no  profit,  in 
which  case  the  courts  have  declared  that  he  is  deprived  of 
his  property  without  due  process  of  law.  If,  however,  a  fran- 
chise has  been  granted  in  which  the  company  is  allowed  to 
charge  a  maximum  rate,  this  is  held  to  be  in  the  nature  of  a 
contract  which  may  not  be  violated  by  the  company.  The 
modern  way  of  fixing  rates  is  by  means  of  a  commission,  acting 
under  the  general  legislative  power  to  fix  reasonable  rates. 
There  are  two  types  of  commissions:  those  appointed  by  the 
state  authorities  to  fix  rates  for  purely  municipal  utilities,  as 
in  New  York  City;  and  general  state  commissions,  which 
supervise  the  action  of  the  rate-detennining  authorities  in 
cities.  The  question  of  what  the  rate  should  be  is  one  in  which 
the  public  is  vitally  interested.  Abnormally  high  rates  make 
too  great  a  charge  upon  the  public  and  deprive  many  persons 
of  the  legitimate  benefit  of  a  public  utility.  Too  low  rates  may 
compel  the  company  to  curtail  its  service  and  prevent  it  from 
paying  interest  on  its  obligations  and  dividends  upon  its  stock. 
A  successful  method  has  been  worked  out  in  Boston  in  dealing 
with  the  gas  company.  This  is  known  as  the  sliding  scale.^ 
The  price  of  gas  is  fixed  at  90  cents  per  1000,  and  a  standard 
dividend  of  7  per  cent  is  allowed  on  the  company's  stock.  As 
the  company  decreases  the  price  of  gas  it  may  increase  its 
dividend  i  per  cent  for  every  reduction  of  5  cents.  This  scheme 
was  copied  from  the  gas  franchises  in  London,  and  similar 
schemes  have  been  adopted  for  the  trolley  fares  in  Cleveland. 
Closely  connected  with  rates  is  the  question  of  the  quality  of 
the  service.  In  the  case  of  gas  the  quality  is  subject  to  frequent  (4)  Quality 
inspection.    In  connection  with  street-car  service,  commissions 

^See  W.  B.  Munro,  Principles  and  Methods  of  Municipal  Adminis- 
tration, p.  250,  with  references. 


520      STATE  AND  MUNICIPAL  GOVERNMENT 

may  order  cars  to  be  run  at  certain  times  and  in  other  ways  regu- 
late their  service.    It  is  of  vital  importance  that  there  be  some 
authority  to  regulate  the  private  operation  of  public  utilities. 
(5)Rever-         A  properly  drawn  franchise  should  provide  that  at  the  ex- 
sion  of  plant  pj^ation  of  the  period  the  plant  should  revert  to  the  munici- 
pality.   In  most  modern  franchises  the  company  is  required  to 
set  aside  each  year  a  portion  of  its  income  to  amortize  the  out- 
standing securities.    Thus,  according  to  the  terms  of  a  modern 
franchise,  the  city  will  receive  at  the  end  of  the  period,  if  all 
goes  well,  a  running  plant  in  good  order,  fully  paid  for,  while 
the  promoters  will  have  received  a  minimum  dividend  and,  if 
successful,  larger  profits  upon  their  invested  capital. 
Types  of  In  most  American  cities  the  supply  of  gas  and  electricity  is 

utmues  in  the  hands  of  a  private  company.  Franchises  are  granted  for 
the  use  of  the  public  streets,  and  the  modern  tendency  is  to 
subject  such  companies  to  strict  control  along  the  lines  just 
described.  Some  cities,  however,  have  engaged  in  municipal 
ownership  and  operation  of  these  utilities  with  varying  success. 
Transmission  of  messages  by  means  of  the  telephone  and  tele- 
graph is  also  a  service  which  is  everywhere  given  to  private 
companies,  with  somewhat  less  supervision.  Transportation  of 
passengers  on  the  surface  and  elevated  cars  and  in  subways  is 
one  of  the  most  important  of  all  the  services  in  a  large  city 
which  are  still  in  the  hands  of  private  companies.  Originally 
the  franchises  were  granted  without  time  limit  and  were  in  a 
very  small  degree  subject  to  public  regulation.  The  modern 
tendency  all  along  the  line  is  toward  stricter  public  supervision. 
In  only  a  few  cities  does  the  city  government  actually  operate 
portions  of  the  transportation  system,  but  in  many  of  the  larger 
cities  the  credit  of  the  city  has  been  granted  to  private  com- 
panies for  constructing  necessary  public  works.  Thus  the  sub- 
ways in  Boston  and  in  New  York  were  built  with  public 
funds  and  leased  to  the  operating  company  on  such  terms 
that  at  the  end  of  the  lease  the  subways  themselves  would  have 
been  paid  for. 

The  evidence  is  conilicting  upon  the  relative  merits  of  public 
or  private  operation  of  pubUc  utilities.^    Each  utility  must  be 
'  Sec  Goodnow  and  Bates,  Municipal  Government,  pp.  389-396. 


CONVENIENCE  521 

judged  by  itself,  and  in  many  instances  the  character  of  the  Relative 
city  and  the  efficiency  of  its  government  must  be  taken  into  municipal 
consideration.    There  is  httle  doubt  in  the  minds  of  most  in-  ^Itllil^^^ 

OP" la  lion 

vestigators  that  the  health  and  welfare  of  the  city  demand  both  of  public 

^  utilities 

public  ownership  and  operation  of  the  street,  water-supply, 
and  sewerage  systems.  Beyond  this  there  is  no  agreement. 
The  English  boroughs  have  been  quite  successful  in  the  opera- 
tion of  municipal  gas  plants.  The  same  success  has  not  at- 
tended similar  experiments  in  the  United  States.  Neither  the 
English  nor  the  American  municipally  operated  electric-light 
companies  have  been  remarkably  successful.  In  other  fields  of 
municipal  operation  the  evidence  is  so  slight  that  no  conclu- 
sions can  be  drawn.  It  is  probable,  however,  that  a  private 
public-utility  company  can,  if  properly  supervised,  furnish  its 
service  at  a  lower  rate  and  is  more  economically  run  than  a 
municipal  company.  Evidence  is  overwhelming  that  an  un- 
supervised public-utility  company  can  make  large  profits  and 
furnish  cheap  service,  but  this  service  may  or  may  not  be 
satisfactory  and  adequate.  There  are,  however,  other  elements 
than  mere  economy  to  be  considered.  Public  utilities  are 
conducted  for  the  benefit  of  the  public,  and  private  gain  should 
be  incidental  to  the  service  rendered.  Social  considerations 
may  require  that  a  public  service  be  rendered  at  a  loss,  as 
in  the  disposal  of  sewage;  or  may  demand  that  the  service 
be  rendered  with  little  or  no  profit,  as  in  furnishing  water. 
A  suitable  and  cheap  system  of  transportation  may  make  it 
possible  to  distribute  the  inhabitants  of  a  congested  area  of 
the  city.  The  relative  merits  of  profit  and  of  social  advantage 
must  be  weighed  in  determining  the  propriety  of  either  method 
of  service.  On  the  whole,  the  English  boroughs,  with  their 
form  of  government  and  with  the  caliber  of  men  who  are  will- 
ing to  engage  in  municipal  service,  have  been  more  successful 
in  operating  public  utilities  than  have  the  American  cities. 
Whatever  theoretical  advantages  or  disadvantages  may  be  ad- 
duced for  one  method  or  another,  the  general  tendency  is 
strongly  in  favor  of  municipal  ownership  if  not  operation. 


CHAPTER  XXIX 

MUNICIPAL  ADMINISTRATION.    EDUCATION, 
CHARITIES,  AND  CORRECTIONS 

I.    Education^ 


Develop-  Local  education  in  the  United  States  had  its  origin  in  the 

St/onin  act  of  the  Great  and  General  Court  of  Massachusetts  of  1647- 
the  United  gy  ^j^jg  gvery  township  with  fifty  householders  must  establish 
an  elementary  school  supported  by  taxation  and  every  town  of 
a  hundred  families  must  set  up  a  grammar  school.  The  idea 
of  free  education  did  not,  however,  spread  rapidly  or  through- 
out the  entire  country.  Fees  were  frequently  charged,  and  in 
many  communities  there  was  no  public  provision  for  education. 
But  after  the  Civil  War  universal  elementary  education  became 
the  rule.  At  present  all  the  children  below  a  certain  age  are 
required  to  attend  schools  a  portion  of  each  year.  Although 
this  is  required  by  state  law,  the  burden  of  maintaining  these 
schools  and  a  large  part  of  their  administration  is  placed  in  the 
hands  of  the  local  authorities.  In  New  England  localism  is 
carried  to  the  extreme,  and  the  schools  of  the  cities  are  prac- 
tically independent  of  county  or  state  authorities.  It  is  true 
that  they  must  conform  to  certain  laws  and  maintain  certain 
standards,  but  these  standards  are  ordinarily  established  with 
the  rural  districts  in  mind.  Outside  of  New  England  county  or 
state  authorities  have  much  wider  powers,  but  throughout  the 
country  the  schools  of  a  larger  city  are  under  the  administration 
of  municipal  authorities. 

There  is  almost  complete  unanimity  in  the  practice  of  Amer- 
ican cities  regarding  the  organization  of  the  school  department. 

IS.  T.  Dutton  and  David  Sneddon's  "The  Administration  of  Public 
Education  in  the  United  States"  is  the  st:indard  authority.  For  brief 
treatments  of  the  subject  as  connected  with  municipal  government,  .see 
W.  B.  Munro,  Principles  and  Methods  of  Municipal  Administration, 
chap,  ix,  and  Goodnow  and  Bates,  Municipal  Government,  chap.  xiii. 

522 


EDUCATION,  CHARITIES,  AND  CORRECTIONS     523 

Practically  everywhere  this  department  is  independent  of  the  orgamza- 
other  organs  of  the  city  government  and  is  commonly  chosen  schoo*/***^ 
by  popular  election.   In  almost  every  city,  moreover,  it  is  simi-  department: 
larly  organized  and  consists  of  a  board  of  laymen  composed, 
in  many  instances,  of  men  and  women  and  an  expert  agent 
known  as  the  superintendent. 

School  boards  are  usually  chosen  as  the  result  of  popular  (o  The 
election,  quite  frequently  according  to  the  nonpartisan  method ; 
that  is,  they  are  nominated  by  a  petition  and  elected  on  a 
ticket  without  party  designation.  The  question  which  is  most 
discussed  in  the  election  of  the  school  board  is  whether  it  should 
be  chosen  from  wards  and  districts  or  at  large.  Many  investi- 
gators advocate  election  at  large  for  the  reason  that  little  dis- 
tricts produce  little  men,  and  the  school  committeeman  from  a 
ward  would  be  under  the  control  of  the  ward  politicians.  Elec- 
tion at  large  commonly  avoids  these  dangers,  but  brings  with  it 
the  possibility  of  certain  other  dangers  which  should  be  con- 
sidered. Such  election  may  result  in  the  choice  of  all  the  mem- 
bers of  the  school  committee  from  one  party,  one  section  of 
the  city,  one  race,  or  one  religious  denomination,  which  in  turn 
may  give  to  the  entire  school  system  of  the  city  these  religious, 
racial,  or  local  characteristics.  This  is  to  be  deprecated.  Under 
the  party  system  (and  possibly  under  the  system  of  election  by 
wards)  it  is  usually  avoided,  and  different  races  and  sections 
of  the  city  receive  some  representation.  Recently  the  system 
of  cumulative  voting  or  proportional  representation  has  been 
applied  in  some  cities  to  break  the  force  of  election  at  large. 
In  some  cities — and  these  among  the  largest^ — the  members 
of  the  school  board  are  appointed  by  the  mayor.  Little  can  be 
said  in  favor  of  this  mode  of  selection,  for  it  mostly  results 
either  in  a  partisan  board  or  in  the  appointment  by  the  mayor 
of  a  board  of  quasi-experts.  Experts  have  no  place  upon  the 
school  board.  In  some  cities — Philadelphia,  for  example — the 
board  of  education  is  appointed  by  the  courts,  and  in  some  of 
the  Southern  cities  it  is  elected  by  the  city  government.  The 
most  popular  method  of  choice,  however,  and  the  one  which  on 
the  whole  gives  the  greatest  satisfaction,  is  popular  election. 
1  Chicago,  New  York,  and  San  Francisco. 


524      STATE  AND  MUNICIPAL  GOVERNMENT 


Functions  of 
the  school 
board 


(2)  The 
school 
superin- 
tendent 


Three  main  functions  are  as  a  rule  allotted  to  the  school 
board.  The  first  function  in  many  cities  is  given  to  some  com- 
mittee of  the  city  government  rather  than  to  the  school  board, 
and  deals  with  the  acquisition  of  land  and  the  erection  of 
buildings.  These  questions  can  well  be  decided  in  many  in- 
stances by  the  city  government,  and  since  the  city  council  is 
called  upon  to  appropriate  the  money  for  the  land  and  build- 
ings, it  may  perhaps  be  well  placed  in  their  hands.  It  happens 
frequently  that  a  committee  of  the  city  council  is  governed 
more  by  political  than  by  educational  considerations.  Land 
may  be  acquired  and  the  type  of  building  erected  which  Vvill 
satisfy  the  political  necessities  rather  than  the  educational  needs 
of  the  city.  As  a  part  of  this  function  the  school  boards  are 
generally  given  the  care  and  upkeep  of  the  plants.  A  second 
function  of  the  school  board  is  also  largely  an  administrative 
or  business  function.  This  deals  with  the  contracting  for  sup- 
plies, which,  in  those  states  where  free  textbooks  are  furnished, 
may  involve  considerable  amounts  of  money.  Under  this 
function  might  also  be  placed  the  granting  of  permits  for  the 
use  of  the  school  buildings  after  hours.  The  most  important 
function  of  the  school  committee,  however,  is  the  appoint- 
ing of  the  superintendent  and  his  assistants,  the  engaging  of 
teachers,  the  final  determination  of  the  curriculum,  and  the 
questions  of  discipline.  These  four  groups  of  activities  require 
diverse  capabilities,  and  school  boards  ordinarily  act  through 
such  committees,  on  which  are  placed  the  members  who  show 
some  fitness  for  the  particular  type  of  work  the  committee  is 
supposed  to  perform. 

The  executive  agent  of  the  committee  is  the  school  superin- 
tendent. He  is  usually  elected  by  the  committee  for  a  definite 
term  of  years.  This  term  should  be  sufficiently  long  in  order 
to  allow  him  to  acquire  a  knowledge  of  the  school  system  and 
to  supervise  for  a  considerable  length  of  time  the  policy  which 
he  is  authorized  to  put  into  effect.  The  relation  of  the  commit- 
tee to  the  superintendent  varies  in  different  states  and  cities  and 
in  the  same  city  with  different  administrations.  Although  tech- 
nically the  superintendent  is  the  executive  agent  of  the  school 
board,  he  is  often  the  controlling  factor  in  its  deliberations. 


EDUCATION,  CHARITIES,  AND  CORRECTIONS     525 

He  is  the  expert  and  gives  his  full  time  to  the  interests  of 
the  schools.  The  school  board  is  composed  of  laymen  who  at 
most  give  only  a  small  proportion  of  their  time.  By  judicious 
recommendation,  therefore,  a  skillful  superintendent  very  fre- 
quently can  get  the  school  board  to  undertake  a  course  of 
action  which  he  suggests.  In  carrying  out  the  policies  adopted 
in  ordinary  times  the  superintendent  receives  the  support  of 
the  board,  and  his  judgment  and  evidence  are  for  the  most 
part  accepted  against  that  of  any  other  person.  These  are  the 
relations  which  exist  when  the  superintendent  is  the  unanimous 
choice  of  the  whole  board.  As  the  superintendent's  term  of 
service  continues,  however,  and  the  composition  of  the  school 
board  changes,  it  usually  happens  that  new  members  become 
critical  of  some  of  his  actions  and  older  members  may  become 
disaffected.  Thus  the  success  of  the  system  depends  to  a  large 
degree  upon  the  ability  of  the  superintendent  to  win  and 
maintain  the  confidence  of  his  board. 

The  superintendent  has  three  main  duties  to  perform.    In  Duties  of 
the  first  instance  he  selects  the  teachers.    It  is  entirely  true  intendent': 
that  in  most  cities  the  school  board  appoints  the  teachers,  but  (a)  seiec- 

^^  .  tion  of 

this  appointment  is  often  little  more  than  ratification  of  a  pre-  teachers 
vious  selection  on  the  part  of  the  superintendent.  Even  where 
the  system  of  competitive  examinations  is  used  for  appointing 
the  teachers,  the  superintendent  is  often  called  upon  to  exercise 
considerable  skill  in  the  choice  of  the  particular  candidate  from 
the  group  certified.  His  ability  to  pick  good  teachers  in  a  very 
large  degree  determines  the  success  of  the  whole  administra- 
tion.   A  second  function  deals  with  the  course  of  study.    In  (b)  Deter- 

....  ,  .  .    •       f      X  e  mination  of 

many  mstances  state  legislation  determines  certain  features  of  the  course 
the  curriculum,  but  there  is  always  a  rather  wide  field  of  choice  °*  ^^^^^ 
left  for  the  school  board  to  make.  Few  school  boards  contain 
members  sufficiently  expert  to  deal  with  these  questions.  This 
is  primarily  the  work  of  an  expert.  The  superintendent  thus 
frames  the  course  of  study,  which  is  submitted  to  the  school 
board   for  criticism  and   approval.    A   third   function  of   this  (c)  Disci- 

.  .  r    1-      pline  and 

official  is  concerned  with  the  discipline  and  the  promotion  01  the  promotion 
teachers.    Experience  here  has  shown  that  it  is  a  wise  course  to 
leave  in  the  hands  of  the  board  the  formal  action  in  suspending 


52  6      STATE  AND  MUNICIPAL  GOVERNMENT 


(d)  Relation 
to  the 
community 


The 
teachers ; 


(i)  Appoint- 
ment 


(2)  Ex- 
amination 


(3)  Promo- 
tions 


(4)  Term 

(5)  Salary 


or  discharging  teachers,  but  never  to  act  except  upon  the  advice 
of  the  superintendent.  Both  the  teacher  and  the  general  public 
feel  that  the  action  of  a  board  is  less  arbitrary  than  that  of  a 
single  individual,  and  the  action  of  the  board,  although  taken 
at  the  advice  of  the  superintendent,  relieves  the  latter  of 
certain  disagreeable  responsibilities.  In  like  manner,  promo- 
tions are  commonly  passed  upon  by  the  board,  though  the 
advice  of  the  superintendent  is  often  conclusive.  Purely  auto- 
matic promotions,  depending  upon  the  length  of  service  of  a 
teacher,  are  never  satisfactory,  and  in  every  system  the  super- 
intendent is  asked  for  official  or  unofficial  recommendations. 
Finally,  the  superintendent  has  certain  duties  inherent  in  his 
position,  yet  unconnected  with  the  school  system.  He  may 
make  himself  a  powerful  influence  in  the  community  not  simply 
in  educational  affairs  but  in  other  civic  movements.  There  is 
great  danger,  however,  that  such  influence  and  action  may  be 
misunderstood,  and  great  care  is  necessary  that  he  attempt  no 
political  or  partisan  action. 

The  backbone  of  the  school  system  is  the  body  of  teachers. 
The  teachers  in  the  public  schools  are  in  many  instances  the 
most  permanent  of  the  city  employees  and  certainly  possess 
the  greatest  opportunity  for  influence.  The  original  method  of 
choice  of  teachers  in  practically  every  city  was  by  vote  of  the 
board  upon  the  recommendation  of  the  superintendent.  By  this 
means  the  greatest  emphasis  was  laid  upon  the  personality  of 
the  teacher  and  no  formal  test  was  made  of  capacity  and  knowl- 
edge. In  an  increasing  number  of  states  an  examination  is 
now  required.  Teachers  who  pass  the  examinations  receive 
certificates,  but  possession  of  a  certificate  by  no  means  guaran- 
tees an  appointment.  Moreover,  by  passing  advance  examina- 
tions, teachers  become  eHgible  for  higher  positions,  although 
appointment  does  not  necessarily  follow.  This  system  of  gen- 
eral examination  has  an  excellent  effect  without  compelling  the 
superintendent  to  select  any  particular  candidates.  In  some 
cities,  however,  the  competitive  system  has  been  introduced ; 
even  then  not  the  highest  one  but  a  group  of  candidates  are 
certified.  The  tenure  of  the  teacher  is  practically  during  good 
behavior,  and  dismissals  are  extremely  rare.    The  salaries  of 


EDUCATION,  CHARITIP:S,  AND  CORRECTIONS     527 

school-teachers  are  small,  not  only  absolutely,  but  relatively  to 
other  municipal  employees  who  perform  less  exacting  duties. 
Some  states  have  adopted  a  system  of  pensions  which  grant  a 
retiring  allowance  outright.  In  other  states  the  contributory- 
pension  system  has  been  adopted. 

The  school  plant  comprises  more  than  the  mere  school  build-  The  school 
ing.  In  rural  and  semirural  cities  it  may  include  the  adjoining  ^  ^'^ 
playgrounds,  and  in  the  largest  cities  the  building  should  con- 
tain adequate  provision  for  recreation.  The  plant  also  contains 
the  equipment  in  the  shape  of  desks,  blackboards,  laboratories, 
and  other  necessary  instruments  of  instruction.  Such  a  school 
plant  is  an  expensive  investment.  Often  cities  are  tempted  to 
build  extravagant  buildings.  When  it  is  remembered  that 
school  buildings  should  be  near  the  centers  of  the  school  popu- 
lation, which  may  shift  in  a  few  decades,  the  futility  of  attempt- 
ing to  erect  monumental  or  extravagant  buildings  is  clearly 
seen.  Moreover,  the  requisites  of  education  are  constantly 
changing ;  new  demands  may  be  made  upon  the  schools  which 
old  buildings  cannot  satisfy.  It  would  seem  far  better  economy, 
therefore,  to  construct  simple,  well-built,  fireproof  buildings 
which  might  serve  the  needs  of  a  single  generation  and  which, 
if  then  found  unsatisfactory,  could  be  torn  down  and  replaced 
by  a  new  building  either  in  the  same  or  another  locality. 

The  function  of  the  school  system  is  primarily  to  furnish  Functions  of 
elementary,  grammar,  and  high-school  education,  but  this  is  by  system""^ 
no  means  the  end  of  its  entire  activity.  In  large  cities,  particu- 
larly, new  duties  and  functions  are  being  constantly  given  to 
the  schools  that  greatly  increase  their  usefulness.  Thus  in 
many  cities  evening  classes  are  conducted  for  persons  above  the 
normal  school-age  who  are  employed  during  the  day-school 
hours.  Adult  foreigners  and  immigrants  frequently  take  advan- 
tage of  these  classes,  and  the  usefulness  of  the  school  system 
is  thereby  greatly  extended.  In  some  states  education  is  not 
confined  to  the  old  accepted  cultural  definition ;  it  includes  edu- 
cation along  special  lines — for  years  there  have  been  courses 
in  manual  training  for  the  boys  and  in  cooking  for  the  girls. 
But  special  vocational  schools  have  more  recently  been  intro- 
duced,  where   the   children   are   taught   particular   trades   or 


52  8      STATE  AND  MUNICIPAL  GOVERNMENT 

occupations.  As  a  result  of  the  study  of  the  mental  condition 
of  the  school  children,  it  has  been  found  wise  to  establish  in 
some  communities  special  schools  for  defectives  and  for  children 
who  are  below  normal  intelligence.  Other  schools  have  been 
established  for  children  suffering  from  some  physical  disability, 
and  the  open-air  schools  have  proved  of  great  value.  The 
schools,  moreover,  furnish  a  convenient  vehicle  for  giving  defi- 
nite instruction  along  certain  lines  which  the  state  or  city  wishes 
emphasized ;  thus  the  public  health  is  greatly  aided  by  the 
instruction  given  to  the  school  children  as  to  the  effect  of  over- 
indulgence in  alcohol  and  narcotics,  while  the  frequent  inspec- 
tion of  the  school  children  by  the  school  physician  and  nurse 
enables  the  authorities  to  detect  incipient  disease  and  to  recom- 
mend treatment  or  isolation,  thus  preventing  epidemics.  In 
some  cases  special  clinics,  like  the  dental  clinics,  are  established 
in  connection  with  the  schools,  where  children  may  be  treated 
without  expense  or  at  a  nominal  charge.  The  schools,  more- 
over, serve  as  excellent  agents  for  good  citizenship  and  seek 
not  only  to  teach  a  knowledge  of  the  operations  of  municipal 
and  state  government  but  to  inculcate  a  proper  moral  standard 
in  dealing  with  these  problems.  Finally,  the  school  building 
may  be  made  a  social  center  at  which  various  local  organiza- 
tions may  meet  for  the  purpose  of  education  or  recreation. 
School  The  school  systems  are  almost  entirely  supported  by  taxa- 

tion. It  is  true  that  some  income  is  derived  from  fees  charged 
to  nonresidents  and  that  some  slight  revenue  comes  from  gifts, 
but  this  amount  is  almost  negligible.  Education  is  expensive. 
The  total  amount  spent  by  the  cities  having  a  population  of 
over  30,000  in  191 9  was  more  than  $200,000,000,  or  a  per- 
capita  expense  of  $6.89.  As  might  be  expected.  New  York 
City  expended  the  greatest  amount  ($44,975,896),  but  Los 
Angeles  had  the  greatest  per-capita  expense  ($10.88).  Out  of 
the  two  hundred  and  twenty-seven  cities  of  the  United  States 
having  a  population  of  more  than  30,000,  only  six  cities^   (and 

1  Charleston,  South  Carolina;  Mobile,  Alabama;  Shrcveport,  Louisi- 
ana; Winston-Salem,  North  Carolina;  Portsmouth,  Virginia;  Columbia, 
South  Carolina.  Sec  Dcixirtmcnt  of  Commerce,  Bureau  of  the  Census, 
Financial  Statistics  of  Cities  (1919),  pp.  204-209. 


EDUCATION,  CHARITIES,  AND  CORRECTIONS     529 

these  all  in  the  South)  spent  in  191 7  less  than  S3  per  capita 
for  their  public  schools.  Shreveport,  Louisiana,  has  the  dis- 
tinction of  having  the  smallest  per-capita  expense  ($2.55).  Not 
only  is  a  large  amount  spent  for  schools,  but  their  costs  is  the 
greatest  single  item  in  the  city's  budget.  In  all  the  cities  having 
a  population  of  more  than  30,000  in  19 19  the  schools  took  more 
than  31  per  cent  of  the  cost  of  the  city  government,  or  three 
times  as  much  as  any  other  single  department.^  In  no  city 
did  the  cost  of  the  schools  consume  less  than  a  fifth  of  the 
entire  revenue  of  the  city — generally  between  25  and  35  per 
cent,  and  in  Norristown,  Pennsylvania,  nearly  60  per  cent. 
Not  only  are  the  schools  absorbing  a  large  proportion  of  the 
cities'  revenue  but  they  are  demanding  a  constantly  increas- 
ing proportion.  This  rapidly  growing  demand  comes  in  a  large 
measure  from  the  newer  uses  to  which  the  educational  plant 
is  put.  Admitting  that  most  of  the  recent  tendencies  in  edu- 
cation are  for  the  best  interests  of  the  people,  the  question  may 
properly  be  asked  whether  the  cities  can  afford  to  furnish 
all  these  types  of  education  without  charge.  As  will  be  seen, 
the  debts  of  the  cities  are  increasing  faster  than  either  their 
population  or  their  taxable  wealth,  and  a  limit  must  be  placed 
on  some  of  the  expenses. 

2.  Charities  and  Corrections 

The  earliest  form  of  municipal  charity  was  poor  relief.  In  poor  relief: 
England  relief  of  the  poor  has  been  a  duty  of  the  towns  since 
Queen  Elizabeth's  time,  and  in  New  England  this  system  has 
been  followed.  Outside  of  New  England  poor  relief  is  admin- 
istered almost  entirely  by  the  county  in  the  South  and  is  shared 
by  town  and  county  in  other  portions  of  the  country.  Still  there 
are  important  exceptions  to  this  statement.  For  example,  in 
New  Orleans,  Richmond,  and  Charleston  poor  relief  is  provided 
under  the  municipal  government,  while  Buffalo,  Rochester,  and 
Jersey  City,  in  the  North  Atlantic  States,  have  no  municipal 
poor  relief,  but  leave  the  matter  to  the  county  authorities. 

iThe  highway  and  the  police  departments  each  expended  a  little  over 
10  per  cent  of  the  city's  revenue.  See  Department  of  Commerce,  Bureau 
of  the  Census,  Financial  Statistics  of  Cities  (1919),  pp.  210-212. 


530      STATE  AND  MUNICIPAL  GOVERNMENT 


(i)  Organ- 
ization 


(2)  Method 
of  granting 


Out-of-door 
poor  relief 


Hospitals 


Where  the  rehef  of  the  poor  is  one  of  the  municipal  func- 
tions, there  is  a  body  or  committee  called  overseers  or  guardians 
of  the  poor.  This  committee  is  either  elected  directly  by  the 
people  or  appointed  by  the  mayor — more  cities  adopting  this 
latter  plan.  It  may  be  a  rather  large,  unpaid  board  or  a 
comparatively  small  board  whose  members  receive  some  salary. 
Whether  it  is  large  or  small,  paid  or  unpaid,  there  is  usually 
an  executive  officer  known  as  the  agent  or  commissioner  who 
is  charged  with  the  actual  administration. 

Poor  relief  is  afforded  ordinarily  through  an  almshouse,  to 
which  indigents  may  be  sent.  This  almshouse  is  under  the 
control  of  a  keeper,  who  acts  under  the  direction  of  the  board 
or  commissioner.  Originally  there  was  little  attempt  made  to 
classify  the  inmates  of  almshouses,  and  indigents,  insane,  and 
feeble-minded  were  herded  together.  With  the  advance  of 
science  this  has  been  changed,  and  the  sick  and  defective  are 
sent  to  other  institutions. 

Out-of-door  poor  relief  is  not  granted  to  any  great  extent  in 
American  cities.  Where  it  is  granted,  it  commonly  takes  the 
form  of  free  medical  attendance  or  a  contribution  of  coal  or, 
in  rare  cases,  a  small  grant  of  money.  Relief  which  is  given 
to  others  than  inmates  of  the  almshouses,  as  a  rule  comes 
through  the  churches  or  some  outside  charitable  agencies. 

In  practically  every  American  city  there  is  at  least  one  hos- 
pital. These  hospitals  are  maintained  in  some  cities  entirely 
by  the  municipal  authorities  under  either  a  specially  appointed 
board  of  trustees  or  a  division  or  department  of  the  board  of 
health.  In  other  cities  hospitals  are  managed  by  trustees  or 
private  corporations  and  often  receive  a  contribution  from  the 
city.  Where  no  definite  contribution  is  given  by  the  city  gov- 
ernment the  expenses  of  indigent  persons  are  paid  by  the  city 
on  the  certification  of  the  overseers  or  the  commissioner  of  poor 
relief.  As  has  been  pointed  out,  some  states  require  munici- 
palities to  maintain  an  isolation  hospital,  and  the  laws  of  other 
states  compel  the  city  or  county  to  support  a  tuberculosis  nurse, 
while  not  a  few  of  these  cities  and  counties  have  established 
special  sanatoriums  for  the  treatment  of  that  disease.  The  mod- 
cm  tendency  is  for  the  city  to  treat  its  sick  in  appropriately 


EDUCATION,  CHARITIES,  AND  CORRECTIONS     531 

different  ways  and  either  to  establish  or  to  contribute  to  the 
specialized  hospitals  which  modern  medicine  now  requires. 

Many  cities  are  undertaking  specialized  care  of  dependent  Care  of 
or  defective  children.  The  simplest  form  is  a  day  nursery,  which 
releases  the  mother  from  the  care  of  her  child  while  she  is  at 
work.  Children's  homes  or  placing-out  agencies  are  found  in 
not  a  few  cities,  while  more  contribute  to  the  support  of  private 
institutions  for  the  benefit  and  protection  of  needy  citizens. 
Closely  analogous  to  these  children's  hospitals  and  homes  are 
the  special  schools  which  some  cities  maintain  for  defectives, 
and  sometimes  certain  classes  of  defectives  are  treated  in  pri- 
vate institutions  at  the  expense  of  the  city  or  state,  even  though 
they  are  not  in  the  city,  but  in  some  other  community. 

It  would  be  impossible  to  enumerate  all  the  varieties  of  other 
charity  which  are  found  in  our  great  cities.  Some  of  these 
could  hardly  be  classified  as  charities  any  more  than  the  schools 
should  be  regarded  as  charitable  institutions,  for  they  perform 
a  municipal  service.  In  this  category  might  be  found  the 
municipal  playground,  the  swimming  pools,  the  recreation  fields, 
and  so  forth.  Other  charities  are  designed  to  deal  especially 
with  dependent  classes,  particularly  with  deserted  wives  or 
dependent  children.  It  is  difficult  to  draw  the  line  between  those 
municipal  activities  which  are  designed  for  the  help  and  im- 
provement of  citizens  of  all  classes  and  affect  the  poor  and  well- 
to-do  alike  and  those  which  deal  primarily  with  the  indigent. 

In  the  larger  cities  of  the  United  States  there  generally  is  a  Department 
department  of  charities.  This  department  may  include  the 
administration  of  poor  relief  which  has  already  been  described, 
but  it  ordinarily  includes  far  more.  The  modern  tendency  is 
to  organize  this  department  under  a  single  commissioner  with 
deputies  subordinate  to  him,  but  in  many  cities  the  board  type 
of  organization  is  followed.  The  single  commissioner  probably 
has  the  advantage  in  dispatch  and  efficiency,  but  from  the  very 
nature  of  charitable  relief  a  board  representing  various  grades 
of  opinions  probably  gives  better  satisfaction. 

In  the  United  States  the  municipal  courts  are  usually  state  corrections 
courts  administering  state  law  within  the  municipality.    The 
legislatures  of  the  states  have  from  time  to  time  established 


532      STATE  AND  MUNICIPAL  GOVERNMENT 

special  courts  for  municipalities  in  order  to  facilitate  the  ad- 
ministration of  justice  and  to  meet  their  special  problems.  Thus, 
in  the  largest  cities  we  find  juvenile  courts,  courts  of  domes- 
tic relations,  small-claims  courts,  courts  of  conciliation,  night 
courts,  day  courts,  and  so  forth.  It  should  be  repeated,  how- 
ever, that  these  courts  administer  state  law  as  well  as  the 
ordinances  which  the  state  has  allowed  the  city  to  make.  The 
judges  of  these  courts  are  chosen  according  to  state  law :  in 
Massachusetts  they  are  appointed,  as  are  all  the  judges;  in 
other  states  they  are  ordinarily  elected  (sometimes  unfortu- 
nately) according  to  districts  or  wards  of  the  city.  These  so- 
called  municipal  courts,  particularly  those  dealing  with  juvenile 
cases  and  domestic  relations,  are  as  a  rule  provided  with  pro- 
bation officers  and  sometimes  with  medical  and  social  workers. 
Especially  in  connection  with  children  reformation  rather  than 
punishment  is  sought.  The  correctional  institutions  are  pri- 
marily those  established  by  state  law  and  include  not  simply 
jails,  houses  of  detention,  and  reformatories  but  reform  schools 
and  institutions  for  education  and  improvement.  Only  in  the 
largest  cities  are  these  supported  and  controlled  by  the  govern- 
ment of  the  city.  As  a  rule  they  are  managed  by  commissioners 
or  boards  of  trustees  appointed  by  state  authorities  (or,  in  some 
rare  instances,  by  the  city  authorities)  or  chosen  by  popular 
election.  It  is  extremely  difficult  to  classify  these  as  municipal, 
state,  or  private  institutions. 


.       CHAPTER  XXX 

MUNICIPAL  ADMINISTRATION.    MUNICIPAL 

FINANCE 

The  problem  of  financing  American  cities  is  most  important  importance 

.  ,  ,  .  -J  c       of  municipal 

and  serious.^  The  previous  chapters  have  given  some  idea  oi  a  finance 
few  of  the  many  functions  which  American  cities  are  now  un- 
dertaking. None  of  these  services  can  be  performed  without 
money.  The  problem  of  municipal  finance  involves  primarily 
an  attempt  to  procure  the  money  necessary  to  pay  the  expenses 
of  the  government  and  administration.  The  amount  needed  is 
startling.  Thus  in  19 19  the  two  hundred  and  twenty-seven  cities 
in  the  United  States  having  a  population  of  more  than  30,000 
raised  $1,224,112,714  and  spent  $1,233,111,835.-  These  figures 
are  larger  than  those  of  the  peace  budgets  of  many  European 
states.  But  large  as  the  figures  are  in  aggregate,  their  signifi- 
cance is  more  clearly  seen  when  reduced  to  per-capita  figures. 
These  same  American  cities  raised  $35.32  per  capita  and  ex- 
pended $35.58  per  capita.^  Assuming  the  average  size  of  a 
family  as  five,  this  means  that  the  average  weekly  expendi- 
ture in  cities  having  a  population  of  more  than  30,000  was 
$3.40  a  week  per  family.  Municipal  finance  may  be  best 
studied  under  four  heads:  revenue,  expenditure,  accounting, 
and  debts. 

iC.  F.  Bastable,  Public  Finance,  presents  a  comprehensive  treatment 
of  the  whole  subject.  An  excellent  account  of  municipal  finance  is  found 
in  W.  B.  Munro's  "Principles  and  Methods  of  Municipal  Administra- 
tion," chap.  X.  See  also  Goodnow  and  Bates,  Municipal  Administration  ; 
chaps,  xiii,  xiv,  xv,  and  xvi  are  extremely  valuable  as  giving  a  compara- 
tive study  of  American  and  European  municipal  finance,  but  the  figures 
quoted  are  now  out  of  date. 

-Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statis- 
tics of  Cities  (iQig),  pp.  1 18-1 19. 

2  Ibid.  pp.  140-141. 

533 


534      STATE  AND  MUNICIPAL  GOVERNMENT 

I.  Revenue 

Sources  of  IVIunicipal  revenue  is  derived  from  several  sources.  The  most 
revenue^  important  of  these  is  taxation,  and  the  most  important  kind 
of  taxation  is  the  general-property  tax,  which  contributes  about 
65.5  per  cent  of  the  total  revenue.  Some  cities  attempt  to 
collect  a  poll  tax,  but  this  rarely  contributes  a  large  percentage 
of  the  total  revenue.^  All  cities  require  business  and  license 
taxes,  which  contribute  about  5  per  cent  of  the  revenue  for  all 
the  cities  having  a  population  of  over  30,000.  In  the  South 
these  taxes  are  widespread  and  bring  in  considerable  revenue. 
Another  source  of  revenue  is  derived  from  special  assessments 
and  charges  for  outlays.  These  bring  in  about  5.6  per  cent  for 
all  the  cities,  but  in  one"  the  amount  received  reaches  31  per 
cent  of  the  total  revenue.  A  source  of  revenue  which  was  at 
,  first  greatly  neglected  but  which  now  is  increasing  in  im- 
portance is  found  in  the  earnings  of  public-service  enterprises. 
For  all  the  cities  over  30,000  this  source  contributed  10.5  per 
cent  of  the  revenue,  but  in  Kansas  City,  Kansas,  44.7  per  cent 
was  derived  from  this  source.^  The  remainder  of  the  city's 
revenue  is  derived  from  fines,  earnings  of  general  departments, 
highway  privileges,  rents  and  interest,  subventions,  grants, 
gifts,  and  donations.  This  last  source  of  revenue  amounts  to 
4.2  per  cent  for  all  the  cities,  but  rises  to  41.9  per  cent  in 
Washington,  D.C.^ 

^Norristown,  Pennsylvania,  derives  4.7  per  cent  of  its  revenue  from 
this  source.  Department  of  Commerce,  Bureau  of  the  Census,  Financial 
Statistics  of  Cities  (1919),  pp.  143-145. 

^Stoclcton,  California,  East  Chicago,  Illinois,  and  Bellington,  Washing- 
ton, obtain  27.8  and  27.4  per  cent  respectively  from  this  source.  Wichita, 
Kansas,  and  South  Bend,  Indiana,  obtain  24  and  25.9  percent  respectively. 
In  no  other  city  does  it  equal  25  per  cent.  Department  of  Commerce, 
Bureau  of  the  Census,  Financial  Statistics  of  Cities  (1019),  pp.  143-145. 

^Jacksonville,  Florida,  obtained  42  per  cent  from  this  source  ;  Austin, 
Texas,  38.3  per  cent ;  Tacoma,  Washington,  and  Holyoke,  Massachusetts, 
37.4  and  37.7  per  cent  respectively  ;  Hamilton,  Ohio,  New  Orleans,  Lou- 
isiana, and  Pasadena,  California,  30  per  cent  or  more.  Department  of 
Commerce,  Bureau  of  the  Census,  Financial  Statistics  of  Cities  (1919), 

pp.  143-145- 

"^ Dayton,  Ohio,  receives  25.2  per  cent  from  this  source;  Mobile,  Ala- 
bama, 24.1  per  cent;  Berkeley,  California,  21.4  per  cent;  Tampa,  Florida, 


MUNICIPAL  FINANCE  535 

As  has  been  said,  the  bulk  of  the  city's  revenue  is  derived  i.  The 

general 
property  tax 


from  the  general-property  tax.    This  is  a  direct  tax  laid  upon  ^^""^'' 


all  kinds  of  property,  real  and  personal,  tangible  and  intangible, 
within  the  jurisdiction  of  the  city.  In  administering  this  tax 
certain  important  problems  must  be  studied — the  kind  of  prop- 
erty to  be  taxed,  the  valuation  of  this  property,  the  rate  at 
which  it  should  be  taxed,  and  the  collection  of  the  tax. 

The  kind  of  property  which  the  city  is  allowed  to  tax  is  (i)  Kinds  of 
determined  by  the  state.  There  is  good  reason  for  this,  because,  be°uxed  ^° 
should  municipalities  be  allowed  to  exempt  certain  classes  of 
property  or  to  tax  other  classes,  the  taxing  power  might  be 
used  to  drive  away  or  to  attract  certain  kinds  of  business.  The 
power  to  tax — involving  as  it  does  the  power  to  destroy — is  too 
great  a  weapon  to  be  given  into  the  hands  of  the  various  cities 
to  use  as  they  think  wise  without  any  uniform  supervision. 
Originally  the  states  for  the  most  part  allowed  the  cities  to  tax 
all  kinds  of  property  within  their  jurisdiction,  although  until 
comparatively  recently  cities  were  not  permitted  to  tax  the 
franchises  of  corporations.  In  many  states  the  tendency  now  is 
to  tax  the  franchise  of  corporations  and  remit  to  the  cities 
concerned  their  proper  share.  In  most  states  the  great  bulk 
of  the  general-property  tax  is  derived  from  two  classes  of 
property — real  estate  and  personal  property  in  the  form  of 
securities.  Some  states,  however,  as  will  be  seen,  are  exempting 
intangible  property  from  municipal  taxation  and  collecting  by 
state  authorities  a  corporation,  a  securit}^,  or  an  income  tax, 
of  which  a  proper  share  is  remitted  to  the  different  cities.^ 

The  assessment  of  personal  property  in  most  cities  is  made  (2)  Assess- 
by  a  board  of  assessors  who  attempt  to  set  a  value  upon  the 
property  existing  within  the  jurisdiction  of  the  city.    Originally 
assessors  were  almost  everywhere  chosen  by  popular  election,  [Assessors] 
often  in  wards.    The  result  was  that  they  were  subject  to  politi- 
cal influence  and  personal  appeal  from  their  constituents.  They 

25.3;  West  Hoboken,  New  Jersey,  20.5  per  cent;  San  Jose,  California, 
26.7  per  cent;  Wilmington,  North  Carolina,  2  2.g  per  cent.  No  other  cities 
derive  as  much  as  20  per  cent  from  this  source.  Department  of  Commerce, 
Bureau  of  the  Census,  Financial  Statistics  of  Cities  (1919),  pp.  143-145. 
^See  pages  227-228. 


536      STATE  AND  MUNICIPAL  GOVERNMENT 

frequently  attempted  to  favor  the  inhabitants  of  their  own  ward 
at  the  expense  of  the  rest  of  the  city.  The  more  modern  prac- 
tice is  appointment  by  the  mayor  either  with  or  without  con- 
firmation of  the  city  council,  although  in  many  cities  they  are 
still  elected  by  the  city  council.  In  the  large  cities  the  assessors 
may  have  some  special  training  and  qualifications  for  their 
duties,  but  ordinarily  they  are  untrained  men. 
(3)  vaiua-  As  a  rule  the  valuation  of  real  estate  is  made  most  unscien- 
reai  esute  tifically.  Hardly  ever  is  the  assessment  based  upon  the  actual 
value  of  the  property ;  the  assessors  attempt  to  discover  either 
what  the  property  would  bring  at  a  forced  sale  or  what  it  is 
assumed  to  be  worth.  In  both  cases  this  is  sheer  guesswork, 
and  quite  often  this  guesswork  is  complicated  by  the  assessor's 
desire  to  treat  his  friends  with  leniency.  Many  cities  assess 
both  land  and  buildings  at  one  valuation ;  in  others  a  more 
scientific  attempt  is  followed  in  order  to  determine  separately 
the  value  of  the  land  and  of  the  buildings.  In  the  valuation  of 
buildings  there  are  many  complications — the  nature  and  struc- 
ture of  the  building,  the  amount  which  would  be  allowed  for 
depreciation,  and  so  forth  must  all  be  considered.  In  the  largest 
cities  real  estate  is  scientifically  assessed  by  dividing  the  city 
into  several  sections  and  determining  the  valuation  of  property 
according  to  the  character  of  the  section.^  Thus,  residence 
property  is  appraised  as  residence  property,  not  as  property  in 
the  wholesale  district;  agricultural  land,  if  any  exists  (as  it 
frequently  may  in  rural  cities),  is  appraised  according  to  the 
purpose  for  which  it  is  used,  not  as  the  land  in  the  wholesale 
district.  In  addition  maps  are  prepared  to  show  the  size  of 
each  lot,  and  special  rules  for  valuation  are  made  to  determine 
the  relative  value  of  lots  on  the  same  streets.  If  this  work  has 
been  carefully  and  scientifically  done  by  an  impartial  board, 
there  is  more  likelihood  of  getting  a  true  valuation  free  from 
personal  political  influence.  In  the  same  way  the  large  cities 
frame  rules  for  the  valuation  of  buildings,  classifying  them 
according  to  the  type  of  construction  and  applying  a  fixed 
system  of  depreciation  within  the  different  classes. 

'See  W.  B.  Munro,  Principles  and  Methods  of  Municipal  Administra- 
tion, pp.  416-420,  with  references. 


MUNICIPAL  FINANCE  537 

The  assessment  of  personal  property  is  attended  with  great  (4)  vaiua- 
difficulties.    Tangible  property  may  perhaps  be  discovered  and  Sgibie 
assessed,  although  the  disclosure  of  this  kind  of  property  is  P^Tm^ 
often  attended  with  considerable  inquisition.    In  some  states 
the  assessors  visit  and  make  personal  inspection  of  the  premises 
of  the  citizens ;  in  others  the  citizens  are  required  to  make  a 
sworn  return  of  all  their  personal  property  with  its  value,  on 
the  basis  of  which  the  assessor  levies  the  tax.    The  true  valua- 
tion of  tangible  personal  property  is  even  more  difficult  to  ob- 
tain than  that  of  real  estate,  and  at  best  only  an  approximation 
can  be  hoped  for. 

Intangible  personal  property,  such  as  stocks,  bonds,  mort-  (5)  vaiua- 
gages,  bank  deposits,  and  so  forth,  is  extremely  difficult  to  ?ntan*'gibie 
discover  or  to  tax  accurately.  Formerly  most  cities  relied  upon  ^^o^l'^t^ 
the  sworn  statement  of  the  owners  as  to  the  amount  and  value 
of  property  in  this  class.  If,  however,  securities  which  had  a 
fixed  par  value  were  to  be  taxed  at  the  same  rate  per  Siooo  as 
real  estate,  a  large  portion  of  a  person's  income  would  be 
taken  in  taxation.  Thus  a  thousand-dollar  4  per  cent  bond 
would  yield  $40,  and  in  a  city  where  the  tax  rate  was  $20  a 
thousand  the  owner  would  be  deprived  of  half  of  this  income. 
This  fact  led  to  the  general  concealment  of  intangible  personal 
property.  The  state  law  might  require  the  citizen  to  make  a 
sworn  declaration  of  all  the  property  he  possessed  of  this  sort, 
but  citizens  would  perjure  themselves  in  making  their  declara- 
tion or  (more  commonly)  refuse  to  make  such  a  declaration. 
In  case  of  such  refusal  the  assessor  would  set  the  tax  at  what 
he  thought  the  citizen  would  stand.  Here  came  in  political 
influence,  party  influence,  and  personal  friendship.  So  it  hap- 
pened that  a  vast  amount  of  intangible  personal  property  alto- 
gether escaped  taxation.  The  result  was  that  the  personal 
property  which  was  taxed  and  all  real  estate  had  to  pay  a 
much  higher  rate  than  would  have  been  necessary  had  all  in- 
tangible personal  property  been  taxed.  The  result  was  that 
the  general-property  tax  both  was  unjust  and  failed  to  produce 
at  a  reasonable  rate  an  adequate  revenue. 

The  general-property  tax  had  failed  because  of  the  common 
requirement  that  all  property  within  the  city  must  be  taxed 


538      STATE  AND  MUNICIPAL  GOVERNMENT 


2.  New 
forms  of 
taxation 


(i)  The 
state 
income  tax 


at  the  same  rate.  This,  as  has  been  shown,  forced  intangible 
property  into  hiding.  The  problem  was  to  secure  such  a  rate  as 
would  prevent  the  concealment  of  intangible  property  and  yet 
produce  an  adequate  revenue.  This  could  only  be  accomplished 
by  a  classification  of  property,  and  in  order  to  do  this  it  was 
frequently  necessary  to  amend  the  state  constitutions,  which 
required  that  all  laws  should  be  equal  and  uniform.  Many 
states  have  now  done  this  and  have  allowed  the  legislature 
to  classify  the  property  within  the  state.  This  has  already 
disclosed  many  advantages  in  the  way  of  bringing  intangible 
property  out  of  hiding.  This  system  is  capable  of  further  de- 
velopment, and  a  method  of  classification  of  property  and  taxa- 
tion for  police  purposes  may  be  developed.  Thus,  unimproved 
real  estate,  if  taxed  at  a  higher  value  than  improved  real  estate, 
will  tend  to  prevent  the  holding  of  real  estate  for  an  apprecia- 
tion of  value  and  may  force  the  erection  of  much-needed  houses. 
So,  also,  tenements  of  a  dangerous  type  might  be  taxed  at  a 
higher  rate  than  more  modern  tenements,  thus  forcing  the 
owner  to  make  the  necessary  improvements.  Such  use  of  the 
power  of  taxation  for  police  purposes  could  safely  be  intrusted 
only  to  the  state  legislature  and  should  not  be  vested  in  the 
hands  of  the  city  council.  The  most  common  use  of  the  classi- 
fication that  has  been  made  is  the  distinction  between  real 
estate  and  intangible  property.  Thus,  some  states^  have  re- 
duced the  taxation  on  intangible  properties  to  a  very  low  figure, 
with  the  result  that  the  amount  of  declared  intangible  property 
has  greatly  increased  and  the  sums  derived  from  this  low,  fixed 
tax  have  been  greater  than  what  the  authorities  attempted  to 
collect  under  the  old  system. 

The  most  up-to-date  method  of  raising  revenue  is  by  levying 
a  tax  upon  the  personal  incomes  of  the  citizens.  If  this  were 
assessed  as  the  old  general-property  tax  is  there  would  be  little 
improvement,  for  the  income  tax  would  be  evaded  as  easily  as 
the  tax  on  intangible  property.  The  more  modern  method — 
which  was  first  adopted  in  Wisconsin  and  now  has  been  taken 
over  by  many  states — is  for  a  state  board  of  assessors  to  require 
all  the  inhabitants  of  the  state  to  make  sworn,  detailed  returns 
'  Tor  example,  Iowa,  Maryland,  Minnesota,  and  Pennsylvania. 


MUNICIPAL  FINANCE  539 

of  the  source  and  amount  of  their  income.  These  returns  are  then 
examined  and  followed  up,  and  the  tax  is  collected  by  the  state 
authorities,  who  remit  to  the  cities  the  proportion  due  them.^ 

A  fruitful  source  of  revenue  lies  in  the  numerous  public-  3.  Taxation 
service  enterprises  which  are  found  in  every  city.  Trolley-car  service 
companies,  telephone  and  telegraph  companies,  electric-light  enterprises 
companies,  all  possess  both  personal  and  real  property,  tangible 
and  intangible,  which  should  contribute  to  the  revenue  of  the 
city  in  which  these  corporations  operate.  The  taxation  of 
public-service  companies,  however,  is  not  a  simple  problem. 
Various  methods  of  taxation  have  been  attempted.  The  most 
obvious  course  is  to  tax  the  real  estate  of  the  company  lying 
within  the  jurisdiction  of  the  city — the  land  and  buildings,  the 
tracks,  the  poles,  and  the  wires.  This  is  comparatively  easy  to 
discover  and  to  fix  a  valuation  upon.  The  greatest  value,  how- 
ever, of  a  public-service  corporation  lies  not  in  its  tangible 
property  but  in  its  intangible  property  ;  that  is,  in  the  franchise 
which  gives  it  the  right  to  use  the  streets  of  the  city  for  its 
wires,  conduits,  or  tracks.  How  shall  the  valuation  of  this 
franchise  be  determined  ?  A  simple  method  is  to  tax  the  fran- 
chise on  the  basis  of  the  number  of  miles  of  tracks  or  wires  or 
of  poles,  which  the  company  possesses  within  the  city,  but  this 
is  open  to  serious  objections.  Such  taxation  may  prevent  the 
company  from  extending  its  service  to  less  profitable  fields. 
A  second  method  is  to  tax  the  franchise  on  the  basis  of  its  net 
earnings,  but  these  are  difficult  to  fix,  and  their  determination 
may  open  the  door  to  fraud  and  corruption.  The  method  which 
is  generally  accepted  as  the  best  is  to  tax  the  gross  earnings  of 
the  company.  These  are  easily  discovered.  A  danger,  how- 
ever, is  always  present  in  taxing  such  gross  earnings.  To  the 
city  government  they  seem  large,  and  the  politician  frequently 
forgets  that  a  large  part  of  these  earnings  must  be  devoted  to 
the  payment  of  fixed  charges,  such  as  interest  on  the  bonds, 
the  upkeep  of  the  property,  and  an  adequate  dividend  on  the 
capital  invested  in  the  company.  The  temptation  is  always  to 
levy  too  high  a  rate  and  thus  cripple  the  company,  for  it  should 
be  remembered  that  a  public-service  corporation  is  a  business 

^See  page  2:7. 


taxes 


540      STATE  AND  MUNICIPAL  GOVERNMENT 

concern  and  cannot  serve  the  public  as  it  should  unless  it  re- 
ceives an  adequate  return.  Therefore,  unless  the  city  refrains 
from  excessive  taxation  of  the  gross  earnings,  the  company  can- 
not extend  or  improve  its  service  to  meet  the  needs  of  a  growing 
community.  Finally,  it  should  be  remembered  that  the  users 
of  the  utility  are  the  ones  who  ultimately  pay  the  taxes  either 
in  increased  rates  or  in  decreased  service.^ 

4.  Business  Most  cities  levy  licenses  and  taxes  upon  special  kinds  of 
business.  In  the  Southern  cities  there  are  many  taxes  of  this 
sort  and  the  amount  received  is  quite  large,  although  it  forms 
only  a  small  percentage  of  the  entire  revenue.  The  extension 
of  such  a  system  is  attended  with  danger.  Certain  types  of 
business  are  easy  to  classify  and  to  subject  to  a  proper  tax, 
but  within  these  broad  types  there  are  many  varieties  and 
grades  which  will  necessitate  special  rates.  The  classification  of 
businesses  by  the  city  government  opens  the  doors  to  favoritism 
and  persecution.  INIoreover,  a  license  tax,  classified  and  rated, 
ultimately  becomes  little  more  than  a  property  or  income  tax. 

5.  Special  Many  cities  obtain  large  amounts  as  the  result  of  special 
assessments.  As  has  been  seen,  it  is  a  common  custom  to  levy 
upon  the  adjacent  property  the  entire  cost  of  any  improvement 
which  has  been  made,  or  a  large  proportion  of  it.  Thus,  street- 
paving,  the  highways,  and,  in  some  instances,  the  extension  of 
water  and  sewer  service  are  charged  upon  the  abutters.  This 
custom,  as  well  as  the  success  of  the  collection,  varies  in  dif- 
ferent portions  of  the  country.  In  some  states  the  greater  part 
of  the  cost  of  the  improvement  is  recovered  by  taxation,  but 
in  others  they  are  not  so  successful.  Thus,  among  the  largest 
cities  Chicago  obtains  12  per  cent  of  its  revenue  from  this 
source,  while  Philadelphia  and  Boston  secure  less  than  i  per 
cent.^  If  the  assessment  for  improvements  is  not  made  until 
the  entire  improvement  has  been  completed,  there  is  less  likeli- 
hood of  its  collection  than  when  the  abutter  is  taxed  each  year 
for  a  proportionate  part  of  the  whole. 

^As  in  the  question  of  tfie  regulation  of  rates,  sociological  rather  than 
financial  considerations  are  often  influential.    See  page  519. 

-Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statistics 
of  Cities  (1919)1  P-  143- 


assessments 


MUNICIPAL  FINANCE  541 

It  has  been  noted,  the  large  cities  in  the  United  States  obtain  e.  Earnings 
about  10  per  cent  of  their  revenue  from  the  earnings  of  public-  service 
service  enterprises.    In   the   former  German   Empire  approxi-  enterprises 
mately  25  per  cent  was  so  obtained,  and  in  the  English  cities 
about  the  same  amount.    As  has  been  seen,  both  the  English 
and  German  cities  have  gone  much  further  in  the  development 
of  municipal  trading  than  have  the  municipalities  of  the  United 
States.    The  enterprises  have  been  so   managed  abroad  that 
they  were  profitable.    In  the  United  States  not  only  have  these 
undertakings  been  quite  usually  left  to  private  companies,  but 
where  taken  over  by  the  cities,  even  when  well  managed,  they 
have  been  conducted  so  as  to  reduce  the  cost  of  the  service 
rather  than  to  yield  a  revenue.     The  sociological  instead  of 
the  financial  aspect  has  been  uppermost  in  the  minds  of  the 
American  cities. 

The  rate  of  taxation  is  first  of  all  fixed  by  the  city  government  Rate  of 
and  is  determined  by  the  amount  of  money  which  the  city  has 
appropriated  for  its  expenses.  Two  dangers  have  been  discovered 
in  leaving  to  the  municipalities  entire  freedom  in  fixing  such  a 
rate.  In  some  instances  the  rate  was  placed  so  high  that  certain 
kinds  of  property  were  unjustly  treated ;  thus,  many  states  have 
limited  the  rate  at  which  a  city  may  tax  the  property  within  its 
jurisdiction  at  so  many  dollars  per  thousand  or  mills  per  dollar. 
A  second  difficulty  arose  from  the  fact  that  the  property  within 
a  city  was  frequently  undervalued  by  the  local  assessors.  This 
was  sometimes  done  to  avoid  the  payment  of  heavy  county  and 
state  taxes,  as  these  taxes  were  not  infrequently  based  upon  the 
valuations  of  the  local  assessors.  To  prevent  this  many  states 
provide  boards  of  equalization^  which  review  the  work  of  the 
local  assessors  and  attempt  to  prevent  them  from  undervaluing 
the  property  within  their  jurisdiction.  Where,  however,  the 
cities  are  prohibited  from  taxing  property  above  a  certain  rate, 
it  is  frequently  necessary  to  increase  the  valuation  in  order  to 
obtain  the  required  amount  of  revenue. 

After  the  assessors  have  finished  their  work  and  the  city  coun-  Collection 
cil  has  determined  the  rate  of  taxation  by  dividing  the  assessed 
valuation  by  the  amount  to  be  raised,  this  is  mathematically 

^See  page  226. 


542      STATE  AND  MUNICIPAL  GOVERNMENT 

applied  to  the  property  of  each  and  every  citizen;  the  tax 
bills  are  sent  out  either  from  the  city  treasurer's  office  or 
from  some  special  official  known  as  the  collector  of  taxes. 
Theoretically  the  citizen  should  at  once  pay  these  taxes,  special 
assessments,  and  license  fees  within  the  time  specified,  but 
actually  this  seldom  takes  place;  it  is  notorious  that  only  a 
small  percentage  of  a  city  population  pays  the  poll  taxes  and 
that  a  somewhat  smaller  percentage  succeeds  in  evading  the 
payment  of  special  assessments.  The  collector  of  taxes  may 
ultimately  force  payment  by  a  distress  warrant  and  selling 
the  property  of  the  delinquent  taxpayer  at  auction  in  order  to 
meet  the  assessed  taxes.  Such  action,  however,  leads  to  un- 
popularity and  is  resorted  to  only  in  desperate  cases;  but  it 
thus  may  happen  that  many  cities  end  the  year  with  a  large 
amount  of  uncollected  taxes.  Income  and  corporation  taxes 
and  taxes  upon  public-service  franchises  which  are  gathered  by 
state  authorities  are  apt  to  be  more  promptly  collected  and 
remitted  to  the  city  authorities. 

2 .    Expenditure 

Municipal  During  the  last  half  of  the  nineteenth  century  municipal 
tures"  '"  expenditures  increased  with  startling  rapidity,  and  during  the 
increasing  ^.^^  decades  of  the  twentieth  century  not  only  the  aggregate 
grew  large  but  the  rate  of  increase  was  higher.  Thus,  from 
i860  to  1890  the  population  doubled  and  the  estimated  value 
of  property  increased  fourfold,  but  the  total  state  and  local 
taxation  was  five  times  greater.'  Since  1900  the  city  expendi- 
tures have  been  growing  nearly  three  times  as  fast  as  the  urban 
population  and  faster  even  than  the  increased  valuation  of  the 
municipal  property,  rapid  and  great  as  this  has  been.  Between 
1903  and  191 9  the  general  departmental  expenses  of  cities 
having  a  population  of  30,000  more  than  doubled.-  The  rea- 
sons for  this  are  not  hard  to  see :  obviously  there  was  a  general 
increase  in  wages  and  salaries;  in  the  second  place,  the  cities 
were  continuing  to  grow  in  size  at  a  phenomenally  rapid  rate. 

^J.  A.  Fairlic,  Municipal  Administration,  p.  321. 

-Dcpartmcnl  of  Commerce,  Bureau  of  the  Census,  Financial  Statistics 
of  Cities  (1919),  p.  78. 


MUNICIPAL  FINANCE 


543 


As  has  been  shown,  it  becomes  always  more  expensive  to  pro- 
tect and  serve  the  inhabitants  of  a  city  when  the  population 
increases  beyond  a  certain  size ;  finally,  what-  was  probably 
the  most  important  and  controlling  factor  in  this  rapidly  grow- 
ing rate  of  expenditure  was  the  added  demands  for  public 
service  and  improvements  which  were  made  upon  the  city. 
Better  pavements  and  better  lighting,  purer  water,  more  effi- 
cient schools,  were  all  demanded  and  must  all  be  paid  for.  Not 
only  were  these  improvements  in  kind  demanded  but,  as  has 
been  seen,  the  cities  were  expected  to  enter  new  fields  of 
municipal  service.  The  result  was  startling.  The  cost  of  gen- 
eral government  more  than  doubled  between  1903  and  1919.^ 
The  expenses  of  the  fire  department  are  almost  twice  as  much. 
The  cost  of  health  conservation  and  the  police  department  has 
increased  more  than  threefold.  The  outlay  for  sanitation  has 
more  than  doubled,  as  has  the  amount  appropriated  for  chari- 
ties, hospitals,  and  corrections.  The  cost  of  the  city  schools 
has  increased  from  $80,000,000  to  more  than  $216,000,000; 
the  amount  spent  on  recreation  from  $7,000,000  to  more  than 
$24,000,000 ;  the  amount  on  pensions  and  gratuities  from 
$3,000,000  to  $18,000,000,  or  more  than  four  times  as  much 
as  in  1903.-  In  19 19  the  cost  per  capita  for  the  cities  having 
a  population  of  more  than  30,000  was  $21.75.  The  principal 
governmicntal  costs  are  shown  in  the  table  below. 


General  government 

Police  department 

Fire  department 

Other  expenses  for  protection  of  persons  and  property 

Conservation  of  health 

Sanitation 

General  expenses  of  highways 

Repair  and  construction  for  compensation  of  highways 

Charities,  hospitals,  and  corrections 

Schools 

Libraries 

Recreation 

Miscellaneous 

General 


Total 

Per  Capita 

^76,977,390 

?2.22 

80,917,027 

2-33 

64,540,941 

1.86 

12,503,134 

0.36 

20,208,615 

0.58 

61,290,630 

1.77 

69,097,634 

1.99 

3,388,145 

0.10 

55,086,145 

'•59 

238,906,8  ■!5 

6.89 

9,842,384 

0.28 

25,971,607 

0.75 

11,804,982 

0-34 

23,253,337 

0.67 

iln  1903,  $30,000,000;  in  191Q,  $72,000,000. 

-Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statistics 
of  Cities  (1919),  p.  78. 


544      STATE  AND  MUNICIPAL  GOVERNMENT 


Municipal 
appropria- 
tions 


Methods  of 
controlling 
appropria- 
tions and 
disburse- 
ments : 

^i  I  New 
York  City 

(2)  General 
law  for 
Massa- 
chusetts 


The  figures  are  the  average  for  all  cities  having  more  than 
30,000  inhabitants.  Individual  cities  may  show  a  different  dis- 
tribution, but'  in  general  this  represents  roughly  the  way  in 
which  the  average  city  spends  its  revenue.^ 

In  all  types  of  city  government  the  power  to  appropriate 
the  revenue  of  the  city  lies  in  the  city  council,  whether  this 
be  a  large  bicameral  or  a  single-chamber  council  or  a  commis- 
sion. The  representatives  of  the  people  jealously  keep  in  their 
own  hands  the  right  to  determine  the  amount  of  money  they 
spend  and  thereby  control  taxation.  The  actual  spending  of 
the  money,  however,  is  not  vested  in  the  city  council,  except 
under  the  commission  type  of  government.  Following  the 
federal  analogy,  the  power  to  make  appropriations  was  vested 
in  one  set  of  men  and  the  power  to  apply  these  appropriations 
in  another.  Thus  the  city  council  merely  turns  over  to  a  more 
or  less  independent  group  of  officials  the  expending  of  the 
money  the  council  has  appropriated.  In  former  times  the 
appropriating  power  was  carelessly  and  extravagantly  used;  dif- 
ferent committees,  often  having  no  relations  with  each  other, 
recommended  the  appropriation  of  various  amounts  for  all 
sorts  of  purposes,  and  no  general  check  was  kept  either  upon 
the  appropriations  or  upon  the  way  in  which  they  were  dis- 
persed. In  more  recent  times  limitations  have  been  placed 
upon  the  appropriating  power  of  the  city  government,  and  an 
effort  has  been  made  to  correlate  these  appropriations  and 
expenditures  and  in  some  way  to  control  the  disbursements. 

Four  different  methods  have  been  tried.  The  first  may  be 
exemplified  in  the  case  of  New  York  City,  where  a  special 
budget-making  authority  was  created,  known  as  the  board  of 
estimate  and  apportionment.  This  body  prepares  the  appropria- 
tions, which  are  ultimately  submitted  to  the  board  of  aldermen, 
who  are  allowed  to  make  reductions  only,  and  even  these  are 
subject  to  the  veto  of  the  mayor.  The  Massachusetts  plan 
places  the  making  of  the  appropriations  in  the  hands  of  the 
mayor,  who  submits  them  to  the  city  council,  but  that  body 
may  not  increase,  although  it  may  decrease,  any  appropriation. 

1  Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statistics 
(1919),  pp.  204-205. 


MUNICIPAL  FINANCE  545 

The  third  method  is  adopted  in  commission-governed  cities  and  ^3)  com- 
mission- 
governed 


fuses  the  appropriating  and  disbursing  authorities ;  the  council  ™'"'°°' 


or  commission  (consisting  of  the  heads  of  the  various  depart-  "^'^® 
ments)  appropriates  the  money,  which  they  in  turn,  as  depart- 
ment heads,  spend.    In  the  city-manager  plan  the  budget  is  (4)  city- 
first  made  by  the  city  manager,  but  the  approval  of  the  council  dtfes^" 
must  be  secured  before  the  heads  of  the  departments  may  dis- 
burse the  money,  nominally,  if  not  actually,  under  the  direction 
of  the  city  manager.   The  city-manager  method  of  making  appro- 
priations more  nearly  resembles  the  ISIassachusetts  plan,  where 
the  responsibility  is  given  to  the  mayor.    In  the  city-manager 
cities,  however,  the  council  may  increase  the  appropriations. 

A  municipal  budget  is  a  method  of  financing  the  needs  of  a  Municipal 
city  according  to  some  definite  plan.  It  includes  both  the  ex-  *"*^^®* 
penditures  and  the  revenues.  It  should  be  prepared  from  data 
gathered  from  the  experiences  of  more  than  one  year.  It  should 
show  not  only  the  total  amount  that  each  department  has  spent, 
or  proposes  to  spend,  but  how  this  amount  is  to  be  distributed 
among  the  various  activities  of  each  department.  The  budget 
is  thus  ''an  instrument  and  a  process  of  government.  As  an  in- 
strument, it  is  a  means  of  getting  before  the  representative  body, 
which  has  the  power  to  control  the  purse,  a  well-considered  plan, 
with  all  the  information  needed  to  determine  whether  the  plan 
should  be  approved  before  funds  are  made  available  for  its  exe- 
cution. As  a  process  of  government,  it  is  a  procedure  for  insuring 
complete  accountability  for  past  grants,  and  for  requiring  those 
whose  future  acts  are  to  be  controlled  to  assume  full  responsi- 
bility for  preparing,  explaining  and  defending  their  plans  and 
proposals  for  future  grants,  such  plans  for  the  future  to  include : 
(i)  an  expenditure  program  based  on  estimated  service  needs, 
and  (2)  a  revenue  program  indicating  what  grants  of  authority 
are  desired  to  enable  them  to  raise  the  money  to  make  purchases 
as  well  as  to  meet  outstanding  obligations."^  To  fulfill  this 
purpose  a  budget  should  present  the  following  essentials : 

I.  A  work  program  showing  what  work  has  been  done  by  the  gov- 
ernment with  costs  classified  by  functions  or  services  rendered  and 

'^Municipal  Research^  No.  80   (December,  1916),  p.  3. 


546      STATE  AND  MUNICIPAL  GOVERNMENT 

presetUing  a  plan  for  the  future  with  the  estimated  costs  of  the  sev- 
eral functions  or  services. 

2.  An  analysis  of  cost  of  things  used  or  to  be  used  in  doing  work, 
or  rendering  service,  such  as  personal  service,  supplies,  materials,  etc. 

3.  An  estimate  of  appropriations  to  be  developed  into  an  act  of 
appropriation — a  statement  of  the  amount  of  appropriation  or  draw- 
ing accounts  to  be  placed  at  the  disposal  of  the  spending  officers  to 
cover  the  cost  of  the  work  to  be  done. 

4.  An  estimate  of  revenues  and  borrowiiig — a  statement  of  the 
ways  and  means  of  raising  the  funds  to  pay  for  the  work  authorized.^ 

How  the  The  most  scientific  way  in  which  a  budget  can  be  made  is 

is'made  "^cll  exemplified  by  the  practice  in  New  York  City.-  According 
to  this  the  board  of  estimate  and  apportionment,  or  in  other 
cities  the  mayor,  receives  from  each  department  the  estimates 
of  their  expenditures  for  the  coming  year.  With  these  estimates 
should  be  submitted  the  expenditures  of  the  previous  year  or 
possibly  the  preceding  years.  The  mayor  alone  is  supposed, 
in  many  cities,  to  deal  with  these  estimates,  but  in  New  York 
a  special  commission  investigates  the  demands  of  the  various 
departments  and  reports  their  findings  to  the  board  of  estimate 
and  apportionment,  which  has  the  final  decision  in  case  of  a 
difference  of  opinion.  The  New  York  plan  differs  from  the 
Boston  plan  and  that  followed  in  many  cities  in  demanding 
what  is  known  as  a  segregated  budget.  This  means  that  each 
department  shall  itemize  and  state  the  purposes  for  which 
each  amount  is  desired.  There  is  great  advantage  in  this  sys- 
tem. By  the  other  method — known  as  the  lump-sum  budget 
— the  departments  were  not  infrequently  led  into  extravagant 
courses  and  often  spent  on  one  project  the  greater  part  of  the 
appropriation  for  the  entire  department.  The  segregated  bud- 
get, however,  has  the  disadvantage  of  paralyzing  administrative 
initiative  in  the  executive  department ;  it  also  is  expensive  in 
that  it  requires  a  considerable  clerical  force  to  prepare  it  and 
increases  the  difficulties  of  auditing.  The  best  practice  would 
seem  to  be  to  require  enough  segregation  to  show  the  actual 
cost  of  running  the  different  bureaus  in  a  department  and  to 

'^Municipal  Rrscarrh,  No.  So  (Dccrmbcr,  IQ16),  p.  19. 

2 Sec  the  Charter  of  the  City  of  New  York,  Sects.  226-247. 


MUNICIPAL  FINANCE  547 

prevent  the  money  appropriated  for  one  purpose  from  being 
used  for  others.  After  the  New  York  commission  has  reported, 
a  tentative  budget  is  prepared  and  printed,  on  which  pubhc 
hearings  are  held.  This  is  an  extremely  important  feature  of 
budget-making,  but  it  is  too  little  taken  advantage  of  by  the 
public  in  most  cities.  After  the  public  hearings  the  board  of 
estimate  and  apportionment  adopts  the  budget,  with  such 
changes  as  seem  fit,  and  submits  it  to  the  board  of  aldermen. 
As  has  been  said,  the  aldermen  may  not  increase  any  item  which 
the  board  has  inserted,  but  they  may  decrease  any  item  subject  to 
the  veto  of  the  mayor.  This  veto  can  be  overridden  only  by  a 
three-fourths  vote  of  the  board,  and,  if  not  sustained,  it  restores 
the  amount  originally  asked  by  the  board  of  estimate  and  ap- 
portionment. The  budget  system  is  well  adapted  for  the  large 
undertakings,  vast  expenditures,  and  complicated  departments 
necessary  for  so  large  a  city.  Smaller  cities  should  preserve  the 
four  great  essentials ;  namely,  minute  classification  in  estimates, 
examination  by  some  person  or  body  familiar  with  the  needs  and 
workings  of  each  department,  public  hearings,  and  segregated 
appropriations. 

3.    Accounting 

Municipal  accounting  is  the  attempt  to  arrange  the  accounts  Definition 
of  the  city  so  that  they  may  be  easily  understood  and  intelli- 
gently used.^  It  is  not  sufficient  for  the  purpose  of  good  admin- 
istration merely  to  account  for  the  expenditure  of  every  penny, 
although  this  must  always  be  done.  In  addition  the  accounts 
must  be  in  such  a  form  that  data  contained  in  them  will  be 
available  for  comparison  with  previous  years  and  the  data  of 
one  city  with  that  of  another.  The  accounts  must  do  more 
than  merely  balance  the  receipts  and  expenditures.  They  must 
group  or  segregate  both  expenditures  and  receipts,  so  that  it 
may  be  possible  to  determine  intelligently  and  accurately  the 
cost  of  any  particular  service  at  any  particular  time.  In  the 
last  twenty  years  much  has  been  done  to  establish  a  proper 
system.    This  has  been  attempted,  first,  by  legislative  process, 

iSee  Goodnow  and  Bates,  Municipal  Government,  pp.  422-426,  with 
references;  also  W.  B.  Munro,  Principles  and  Methods  of  Municipal 
Administration,  pp.  460-464. 


548      STATE  AND  MUNICIPAL  GOVERNMENT 

whereby  the  states  have  passed  laws  directing  the  cities  to  keep 
their  accounts  according  to  certain  plans.  It  has  been  accom- 
plished more  successfully,  however,  by  administrative  means ; 
not  a  few  states  have  provided  for  the  periodic  audit  of  munici- 
pal accounts  by  state  officials  and  have  required  the  cities  to 
make  certain  returns  according  to  definite  forms,  particularly 
when  they  seek  to  borrow  money  beyond  the  debt  limit. 


Definitions 


Amount  of 

municipal 

debts 


4.  Debts 

As  has  been  shown,  the  expenditures  of  a  city  exceed  the 
revenue.  All  the  cities,  therefore,  have  debts,  but  these  debts 
are  of  various  sorts  and  are  differently  treated.  The  funded 
debt  of  a  city  is  that  part  represented  by  bonds  which  have  a 
number  of  years  to  run  and  which  are  to  be  redeemed  either 
serially  or  by  a  sinking  fund.  The  floating  debt  of  a  city  is 
that  for  which  no  long-term  securities  have  been  issued  and  no 
funds  provided  for  its  redemption.  These  are  usually  evidenced 
by  short-term  notes,  which  may  include  loans  in  anticipation 
of  the  collection  of  taxes.  The  current  debt  of  a  city  is  the 
debt  for  which  payment  is  already  provided  by  cash  on  hand 
or  taxes  levied  but  not  collected.  The  gross  debt  of  a  city  is 
the  total  amount  of  all  debts  outstanding,  while  the  net  debt 
is  the  gross  debt  less  all  assets,  including  possibly  the  amount 
in  the  sinking  fund.^ 

The  debts  of  cities  having  a  population  of  more  than  30,000 
in  1919  were  $3,702,272,563.-  Large  as  these  figures  are,  what 
is  more  startling  is  to  note  that  this  municipal  debt  shows  an 
increase  of  more  than  40  per  cent  between  1909  and  19 19. 
Not  quite  so  amazing  is  the  per-capita  debt,  which,  in  1919, 
was  Si  18.28  as  against  a  per-capita  debt  in  1909  of  S88.20, 
showing  an  increase  of  only  about  35  per  cent.  Rapidly  as  the 
gross  debt  of  the  cities  has  grown,  the  increase  in  population 

'  Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statistics 
of  Cities  (iqiq),  pp.  42-43;  VV.  B.  Munro,  Principles  and  Methods  of 
Municipal  Administration,  p.  465;  Goodnow  and  Bates,  Municipal  Gov- 
ernment, pp.  416-417. 

-Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statistics 
of  Cities   (1919),  p.  94. 


MUNICIPAL  FINANCE  549 

has  prevented  a  similar  extension  in  the  per-capita  debt.  The 
largest  cities  have  the  largest  debts;  thus,  those  cities  having 
a  population  of  more  than  500,000  have  a  per-capita  debt  of 
$160.41,  while  cities  with  a  population  between  30,000  and 
50,000  have  a  per-capita  debt  of  only  $60.09.^  This  is  but 
another  evidence  of  the  fact  that  the  expenses  of  government 
grow  more  than  proportionally  with  the  increase  of  population. 

The  increase  of  municipal  indebtedness  has  led  the  states  to  Debt 
limit  the  amount  of  indebtedness  which  any  city  may  incur.  ^^™'*^ 
It  is  managed  in  various  ways,  but  usually  by  fixing  a  percent- 
age of  the  total  assessed  valuation  and  forbidding  any  city  to 
incur  a  debt  beyond  such  a  percentage.  Indiana  fixes  2  per 
cent;  New  York,  on  the  other  hand,  limits  its  cities  to  10  per 
cent  of  the  real-estate  assessment.  California  limits  the  in- 
debtedness not  by  percentages  of  assessment  but  by  the  annual 
income,  and  prohibits  any  city  from  incurring  a  debt  beyond 
an  entire  year's  revenue.  In  addition  to  these  constitutional 
limitations,  some  states  limit  the  city's  debts  by  statutes — 
sometimes  a  limit  based  upon  a  percentage  of  the  value  of  the 
property,  sometimes  on  the  nature  of  the  loan.  Thus  Pennsyl- 
vania prohibits  cities  from  issuing  bonds  for  a  period  longer 
than  thirty  years,  and  Massachusetts  has  classified  the  purposes 
for  which  bonds  may  be  issued  and  has  fixed  a  term  of  years  for 
each  purpose.  Some  cities  are  required  to  submit  the  question  of 
municipal  loans  to  a  popular  referendum,  and  in  some  instances 
a  majority  of  two  thirds  of  the  voters  is  required  for  adoption. 

The  American  practice  of  attempting  to  limit  municipal  Futility  of 
debts  by  law  has  proved  a  failure.  Cities  have  been  able  to  restrictions 
appeal  to  the  legislature  and  obtain  permission  to  borrow 
money  in  excess  of  the  limits  fixed  by  law.  A  sudden  disaster, 
a  much-needed  improvement,  an  attempt  to  engage  in  some 
municipal  undertaking  which  will  produce  a  revenue,  are  rea- 
sons which  will  frequently  lead  a  legislature  to  except  a  city 
from  the  legal  requirements  of  the  debt  limit.  In  England  the 
control  of  municipal  indebtedness  is  largely  an  administrative 
affair,  and  if  a  city  can  convince  the  local-government  board  of 

1  Department  of  Commerce,  Bureau  of  the  Census,  Financial  Statistics 
of  Cities  (1919),  pp.  296-297. 


550      STATE  AND  MUNICIPAL  GOVERNMENT 

the  necessity  for  a  loan,  such  permission  is  granted,  but  the 
purpose  of  the  loan,  the  use  of  the  money  obtained,  and  the 
provision  for  its  extinguishment  are  carefully  supervised. 
Administrative  rather  than  legislative  control  is  probably  a 
better  method  of  controlling  the  debts  of  the  municipality. 
Payment  of  Two  methods  are  adopted  by  cities  for  extinguishing  their 
debts'^'^^  indebtedness.  One  is  the  sinking-fund  plan ;  the  other,  the 
serial-bond  plan.  According  to  the  first  the  city  council  is 
supposed  to  appropriate  each  year  an  amount  of  money  which, 
if  put  at  compound  interest,  would  extinguish  the  bonds  upon 
their  maturity.  Theoretically  this  has  much  in  its  favor  and 
perhaps  is  somewhat  more  economical ;  practically,  however, 
there  are  grave  disadvantages.  The  city  council  cannot  be  com- 
pelled to  make  the  annual  appropriations  for  the  sinking  fund. 
Some  unforeseen  expense  may  lead  to  postponing  such  appro- 
priations. The  sinking  funds  may  be  carelessly  or  foolishly  in- 
vested, sometimes  in  the  future  securities  of  the  city  itself. 
Finally,  there  is  the  danger  of  actual  dishonesty  and  corruption 
on  the  part  of  the  sinking-fund  commissioners.  The  serial- 
bond  plan  provides  that  a  certain  number  of  the  bonds  shall 
be  redeemed  each  year.  In  this  way  the  city  is  compelled  to 
appropriate  a  sum  each  year  in  order  to  protect  its  credit,  and 
in  return  is  required  to  pay  each  year  a  decreasing  interest 
charge.  Modern  opinion  is  overwhelmingly  in  favor  of  the 
serial-bond  plan. 

Municipal  government  is  largely  municipal  housekeeping. 
The  state  legislature  and  the  state  laws  pretty  conclusively 
determine  the  liberty  and  the  activities  of  the  citizens.  The 
citizens  are  governed  by  the  state,  but  are  supplied  with 
the  necessities  and  conveniences  of  modern  life  largely  by  the 
municipalities  in  which  they  live.  State  government  is  pri- 
marily interested  in  problems  of  policy.  In  recent  years  it  is 
increasingly  interesting  itself  in  problems  of  administration  and 
service.  Still,  the  city  is  primarily  the  administrative  organi- 
zation. As  such  its  frame  of  government  should  be  adapted 
to  business  and  administrative  conditions,  and,  in  particular, 
its  fmancial  administration  should  be  conducted  according  to 
business  principles  along  efficient  lines. 


INDEX 


Absent  voting,  99-100 

Accounting,   municipal,   547-548 

Address,  legislative,  removal  of 
judges  by,  282 

Administration,  in  colonial  bor- 
oughs, 362 

Administration,  county,  323-325; 
of    justice,    325-329 

Administration,  municipal,  city 
council's  powers  diminished  by 
creating  special  departments  and 
legislative  commissions,  367-36S; 
means  of  state  control  over  cities, 
391-392 ;  powers  of  city  council, 
418;  under  commission  govern- 
ment, 435-436,  438,  441;  under 
city-manager  plan,  449-450,  452; 
city  departments,  454-463  ;  board 
or  commissioner,  462 ;  subor- 
dinate officials  and  employees, 
463-469;  police,  470-479;  fire, 
479-485;  health,  485-490;  build- 
ing, 490;  city  planning,  491-496; 
streets,  496-505  ;  water,  505-511 ; 
waste  disposal,  511-513;  sewage, 
513-517;  public  utilities,  517- 
521;  education,  522-529;  chari- 
ties and  corrections,  529-532; 
finance,  533-55° 

Administration,  state,  149-167; 
characteristics,  149;  officers,  150- 
153;  boards  and  commissions, 
154-157;  internal  organization 
of  boards  and  departments,  157- 
161 ;  relative  merits  of  board  or 
commissioner,  1 60-1 61;  relation 
to  legislature,  161-162 ;  relation 
to  governor,  162 ;  relation  to 
courts,  162-163;  reorganization, 
163-167;  functions,  16S-103;  en- 
forcement of  state  law,  168-172; 
education,  172-176;  charities 
and  corrections,  176-180;  cor- 
rectional institutions,  180-182; 
public  health,  182-185;  labor- 
law  administration,  185-189; 
agriculture,  189-190;  regulation 
of  corporations,  190-193;  pubHc 
works,   193;  judicial  control   of. 


302-304;  ministerial  and  discre- 
tionary acts,  303-304;  by  sheriff, 
328 

Administration,   town,   335 

Agamenticus,  Maine,  chartered  as 
colonial  borough,  359 

Age,  as  qualification  for  voting,  40, 
395 ;  statistics  as  to,  in  cities, 
352;  for  office  of  mayor,  422 

Agriculture,  state  administration  of, 
189-190 

Alabama,  vote  required  for  amend- 
ing constitution,  32  ;  suffrage  con- 
ditioned on  residence,  41,  395; 
suffrage  conditioned  on  literacy, 
42,  44;  direct  primaries,  68  n.; 
four-year  term  of  legislature, 
203 ;  organization  of  counties, 
322;  election  districts,  340;  suf- 
frage conditioned  on  payment  of 
taxes,  397;  commission  govern- 
ment for  cities,  432-434 

Albany,  chartered  as  borough, 
313  n.;  colonial  sheriff  in,  361; 
freemen  in,  361 ;  water  purifica- 
tion, 508 

Aldermen,  in  colonial  period,  360; 
at  present,  411;  confirmation  of 
mayor's  appointments  by,  427- 
429 

Alien  population,  in  states,  4-5 ;  in 
cities,  349-351 ;  the  foreign-born, 
349,  370;  reasons  for  presence  in 
cities,  349-350;  effect  in  cities, 
350-351;  the  negroes,  349;  cause 
of  increased  difficulties  in  police 
administration,  473-474 

Amendments,  to  Federal  Constitu- 
tion, first  ten,  14-15,  17;  Elev- 
enth, 15;  Fourteenth,  9,  11-13, 
15,  23,  196,  238-239,  276-277; 
Fifteenth,  43;  Eighteenth,  323, 
324;  Nineteenth,  40-41,  395-396 

Amendments,  to  state  constitutions, 
early,  20;  in  general,  30-36;  pro- 
posed by  initiative,  194  n.;  fram- 
ing of,  by  legislatures,  222-223 

Amendments,  to  city  charters  under 
home  rule,  385-386 


55> 


552      STATE  AND  MUNICIPAL  GOVERNMENT 


American  City,  445  n.,  452  n. 

American  Political  Science  Review, 
75  n.,  112  n.,  13411.,  14311.,  ISO  n., 
166  n.,  16711.,  217  n.,  22711. 

American  Proportional  Representa- 
tion League,  publications,  102  n. 

American  Year  Book,  18  n.,  68  n., 
126  n.,  165  n.,  166  n.,  204  n., 
272  n.,  395  n.,  432  n. 

Annals  of  the  American  Academy 
of  Political  and  Social  Science, 
200  n.,  317  n. 

Annapolis,  Maryland,  chartered  as 
borough,  313  n.;  a  close  corpora- 
tion, 360 

Appeal,  courts  for,  271-272,  298; 
right  of,  298;  grounds,  298-299; 
effects,   299-300;   reforms,  301 

Appointment,  power  of,  by  gover- 
nor, 139-144;  limitations  on, 
140-142 ;  through  the  civil  serv- 
ice, 141-142;  political  conse- 
quences of,  143-144;  in  cities, 
366;  by  mayor,  370,  427-429, 
458,  523  ;   by  city  manager,  449 

Area,  variations  in,  of  states,  4;  of 
counties,  318,  346-347 

Arizona,  density  of  population,  4; 
constitution  amended  by  referen- 
dum, 35;  suffrage  quahfication, 
42;  emergency  legislation,  118; 
no  veto  or  amendment  of  direct 
legislation,  122;  recall,  126-127; 
term  of  legislature,  203 ;  size  of 
senate,  203 ;  recall  of  judges, 
282  ;  municipal  home  rule,  384- 

38s,  447 
Arkansas,  vote  required  for  amend- 
ment of  constitution,  32;  consti- 
tutional convention  provided  for, 
32 ;  amendment  by  referendum, 
35;  direct  primaries,  68  n.;  vote 
on  referendum  in  1916, 121 ;  gov- 
ernor's power  of  removal,  143; 
legislative  budget,  233 ;  jurisdic- 
tion of  county  courts,  271,  326; 
organization  of  county  boards, 
322;  townships,  340;  special 
legislation  for  cities  forbidden, 
367;  extension  of  suffrage  to  non- 
citizens,  394;  payment  of  poll 
ta.x  required  for  voting,  397 ; 
election  of  department  heads 
under    commission    government, 

4.35 
Arrest,  291 
Ashes,  disposal  of,  512 


Ashley,  R.  L.,  "Preferential  Vot- 
ing," loi  n. 

Ashtabula,  Ohio,  adoption  of  pro- 
portional representation,  102 ;  ef- 
fect of  proportional  representa- 
tion, 103,  403;  city-manager 
plan,  451 

Assessment,  of  property  for  munic- 
ipal taxation,  535-540;  of  real 
estate,  536;  of  tangible  personal 
property,  537;  of  intangible 
property,  537.  See  also  Special 
assessments 

Assessors,  county,  330;  town,  336; 
in  Southern  county  districts,  340; 
in  cities,  535-537 

Atlanta,  Georgia,  business  taxes, 
229;  garbage  incineration,  513 

Attainder,  bill  of,  11 

Attorney,  district,  152;  prosecut- 
ing, 286,  289-290,  326-327 

Attorney-general,  in  states,  151- 
152 ;  assistant,  152 

Auditor,  state,  153;  county,  331 

Austin,  Texas,  revenue  from  pub- 
lic-service  enterprises,    534  n. 

Australian  ballot  as  adopted  in  the 
states,  92-93 

Bail,  201-292 

Baldwin,  Simeon  E.,  The  American 
Judiciary,  269  n.,  278  n.,  300  n. 

Ballot,  the,  91-99;  importance,  91- 
92  ;  early  regulations,  92 ;  reform 
of,  92-99 ;  Massachusetts  type, 
92-96;  party-column  type,  93- 
95;  variations,  93-94;  short  bal- 
lot, 95-96 ;  short  versus  long,  96- 
99;  preferential,  101-102;  pro- 
portional representation,  102- 
104;  initiative  and  referendum 
measures  on,  120-121,  125; 
municipal,  398-403 

Baltimore,  state-appointed  police 
commissioners,  i6q,  420,  458  n., 
475;  early  board  of  health,  182; 
coincides  with  county,  318  n.; 
early  election  of  aldermen  and 
mayor  by  electoral  college,  363, 
419  n.;  first  waterworks,  367; 
special  legislation,  379;  retains 
bicameral  council,  411;  term  of 
mayor,  421;  residence  require- 
ment of  mayor,  422;  organiza- 
tion of  police  force,  474;  fire 
hdard,  4S2 ;  cost  of  public- 
health  work,  490 


INDEX 


553 


Banking,   regulation    of,    by    state, 

IQI 

Barnes    v.    District    oj    Columbia, 

384 

Barnett,  J.  D.,  The  Operation  of 
Initiative,  Referendum,  and  Re- 
call in  Oregon,  105  n. 

Bastable,  C.  F.,  Public  Finance, 
533  n. 

Bates,  F.  G.   See  Goodnow,  F.  J. 

Beard,  C.  A.,  American  Govern- 
ment and  Politics,  12  n.,  66  n., 
83  n.,  86  n.,  89  n.,  96  n.,  202  n.; 
Readings,  13  n.,  58  n.,  146  n.; 
"Ballot's  Burden,"  57  n.,  96  n.; 
"  Commissions  in  American  Gov- 
ernment," 154  n. 

Beard,  C.  A.,  and  Shultz,  B.  E., 
Documents  of  the  Initiative, 
Referendum    and    Recall,    115  n. 

Bellington,  Washington,  revenue 
from   special   assessments,   534 

Berkeley,  California,  revenue  from 
miscellaneous  sources,  534  n. 

Bicameral  legislature,  in  states,  21, 
198-200;  in  cities,  363-364,  365, 
411 

Bill  of  rights,  in  Federal  Constitu- 
tion, 14-15,  17,  22;  in  state  con- 
stitutions, 22-23,  28-29;  as  limi- 
tation on  legislature,  196 

Birmingham,  Alabama,  salary  of 
commissioners,  434-435 

Birth  rate  in  cities,  353 

Blackstone,    Commentaries,    239  n., 

251 
Bloomfield  v.   Charter  Oak   Bank, 

333 

Blue,  L.  A.,  "Recent  Tendencies  in 
State  Administration,"  158  n., 
159  n. 

Boards  and  commissions,  state. 
See  Administration,  state 

Boise,  Idaho,  salary  of  commis- 
sioners, 435 

Boroughs,  colonial,  313,  359-362; 
at  present,  341-342 

Boss,  the,  in  political  parties,  57 

Boston,  state  appointment  of  police 
commissioner,  169,  458  n.,  475; 
early  board  of  health,  182,  485; 
first  city  charter,  313  n. ;  coincides 
with  county,  318  n. ;  popular  elec- 
tion of  mayor  provided  in  1822, 
364 ;  first  waterworks,  367 ;  spe- 
cial legislation  for,  379;  nomi- 
nation by  petition,  400;  size  of 


city  council,  411;  caliber  of 
council  members,  412;  how 
council  members  are  chosen,  412  ; 
term  and  reeligibility  of  mayor, 
421;  salary  of  mayor,  423  n.; 
cost  of  mayor's  election,  423; 
mayor's  veto,  425;  executive 
budget,  427;  civil-service  confir- 
mation of  mayor's  appointments, 
428,  459-460,  461 ;  number  of 
administrative  departments,  457; 
police  organization,  474;  high 
cost  of  police  department,  478; 
fire  department  and  commis- 
sioner, 482 ;  training  school  for 
firemen,  482 ;  high  cost  of  fire 
department,  484;  maximum  con- 
sumption of  water,  506 ;  source 
of  water,  507 ;  organization  of 
water  department,  509 ;  debts  for 
sewerage,  517;  sliding  scale  for 
gas  rates,  519;  construction  of 
subways,  520 

Boulder,  Colorado,  adoption  of 
proportional   representation,    102 

Bouvier,    Law    Dictionary,    327  n. 

Boynton,  W.  E.,  "Proportional 
Representation  in  Ashtabula," 
403  n. 

Bradford,  E.  S.,  Commission  Gov- 
ernment in  American  Cities, 
431  n. 

Bridgeport,  Connecticut,  commis- 
sion government  rejected  by,  432 

Brodnax  v.  Missouri,  276 

Brookline,  Massachusetts,  popula- 
tion, 333 

Brooklyn,  removal  of  council  con- 
firmation from  mayor's  appoint- 
ments, 420  n. 

Brown  v.  Maryland,  10 

Bryce,  James,  American  Common- 
wealth, 394  n. 

Buck,  A.  E.,  in  National  Municipal 
Review,  232  n. 

Budget  system,  in  the  states,  232- 
23s;  types,  232-233;  executive 
type,  233-235;  control  of  city 
council,  416-417;  control  of 
mayor,  426-427;  in  Dayton  city- 
manager  plan,  450;  municipal, 
essentials  of,  545-546;  practice 
in  New  York  City,  546-547 

Buffalo,  contains  bulk  of  county 
population,  318;  may  not  adopt 
optional  charter,  382 ;  commis- 
sion government  in,  432;  salary 


554      STATE  AND  MUNICIPAL  GOVERNMENT 


of  commissioners,  434;  power  of 
mayor,  437;  high  cost  of  police, 
479;  cost  of  pubhc-health  work, 
490;  cost  of  streets,  500;  source 
of  water  supply,  50S;  county 
poor  relief,  529 

Building  department  in  cities,  490 

Business  taxes,  229 

Buttrick  V.  City  of  Lowell,  475 

California,  estimated  wealth,  5 ; 
amendment  of  constitution  by 
referendum,  35,  36;  suffrage 
qualification,  42 ;  effect  of  suf- 
frage qualification,  45 ;  nonpar- 
tisan primaries,  67  n.,  68;  regu- 
lation of  campaign  expenses,  87- 
88;  emergency  legislation,  118, 
119;  no  amendment  of  laws 
adopted  by  the  initiative,  122; 
effect  of  direct  legislation,  124; 
recall,  126,  127;  governor's  sal- 
ary, 134;  governor's  veto  power, 
i37>  138;  administrative  reorgan- 
ization, 165 ;  publication  of  text- 
books, 175;  no  distinction  be- 
tween legal  and  equitable  rem- 
edies, 245-246;  recall  of  judges, 
283;  area  of  largest  county,  318; 
jurisdiction  of  county  courts, 
325;  local  assessors,  330  n.;  spe- 
cial legislation  for  cities  forbid- 
den, 370;  municipal  home  rule, 
370,  384,  447;  recall  in  cities, 
408;   municipal  debt  limits,  549 

Cambridge,  Massachusetts,  commis- 
sion government  rejected  by,  432  ; 
garbage  disposal,  513 

Campaigns,  political,  conducted  by 
state  committees,  48-49;  effect 
of  direct  primary  on  expense  of, 
72-73;  in  the  states,  77-91; 
definition,  77;  kinds,  77-78; 
management,  78-79;  methods, 
79-81 ;  textbook  and  publicity 
pamphlet,  80;  use  of  money  in, 
81-89;  regulation  of  expenses  by 
states,  86-89 

Candidates  for  officc,mu]tiplicity  of, 
59 ;  effect  of  direct  jjrimary ,  70-7 1 , 
72 ;  relation  to  party  committee, 
78-79;  regulation  of  campaign 
expenses,  87-89;  judges  as,  270 

Canton,  Ohio,  source  of  water  sup- 

F^iy-  .S07 

Channing,  Edward,  History  of  the  ^ 
United  Stales,  309  n. 


Charities,  pubhc,  176-177;  state 
supervision  of  public,  177-178; 
private  institutions,  177;  state 
supervision  of  private  institu- 
tions, 178-179;  state  boards, 
179;  administrative  boards  of 
control,  179-180;  administration 
by  counties,  324;  in  cities,  proper 
control  of  state  over,  390;  poor 
relief,  529-530;  hospitals,  530- 
531;  care  of  children,  531;  de- 
partment of  charities,  531 

Charleston,  South  Carolina,  negro 
population,  349  n. ;  school  ex- 
penditures, 528;  poor  relief,  529 

Charters,  relation  of  colonial  to 
state  constitutions,  18-19;  in 
Connecticut  and  Rhode  Island, 
21;  in  boroughs,  313  n.,  359-360; 
in  cities,  after  the  Revolution, 
363 ;  control  of  state  legislatures 
over,  367,  370,  374-375;  inde- 
pendence of  cities  in  framing, 
372;  contents,  375-376;  home- 
rule,  384-387 

Chattanooga,  Tennessee,  mayor's 
veto  in  commission  government, 
437 

Checks  and  balances,  in  early  state 
constitutions,  25;  in  early  city 
charters,  363  ;  not  present  in  com- 
mission form  of  government,  441 

Chicago,  contains  bulk  of  county 
population,  318;  representation 
on  county  board,  322;  popula- 
tion more  trading  than  indus- 
trial, 346;  area,  346;  first  water- 
works, 367 ;  independence  of 
water  board  in  1851,  368;  size 
of  council,  411;  state  control 
over  police  in  1861,  420,  475; 
term  of  mayor,  421;  mayor's 
salary,  423 ;  number  of  adminis- 
trative departments,  457;  civil 
service  in,  467;  fire  loss,  479  n.; 
fire  department  and  commis- 
sioner, 482 ;  training  school  for 
firemen,  482 ;  board  of  health 
established,  485 ;  source  of  water 
supply,  508 ;  debt  for  sewerage, 
517;  appointment  of  school 
board,  523 

Child  labor,  187-188 

Childs,  R.  S.,  Short-Ballot  Prin- 
cii)k's,  q6  n. 

Cincinnati,  contains  bulk  of  county 
population,   318;   per-capita   fire 


INDEX 


555 


loss,  479  n. ;  first  steam  fire- 
engine,  482 ;  water  purification, 
508 

Cities,  discrimination  against,  in 
bicameral  state  legislatures,  202- 
203;  special  courts  in,  270;  char- 
acteristics in  America,  345-358; 
definition,  345  ;  reasons  for  exist- 
ence, 345-346;  area,  346-347; 
population,  347-348;  death  rate, 
34S;  aliens,  349-351 ;  distribution 
of  sexes,  351-352;  distribution 
of  ages,  352;  health  in,  354- 
355;  intellectual  standards,  356- 
357;  ownership  of  property, 
357;  moral  standards,  357-358; 
humanitarian  movements  in, 
358;  relation  to  the  states,  374- 
392 ;  powers  granted  by  charter, 
376-377;  liabilities,  377-378; 
special  legislation  for,  378-383; 
home  rule,  383-38S;  proper  con- 
trol of  state  over,  388-392 ;  as 
political  units,  393-408;  govern- 
mental organization,  409-453 ; 
administration,  454-550;  ex- 
penditures, 542-547 ;  debts,  548- 
550;   revenues,  534-542 

Citizens'  Union  in  New  York  City, 
campaigns  conducted  by,  405, 
406 

Citizenship  of  the  United  States, 
privileges  and  immunities,  12- 
13;  as  quahfication  for  voting, 
41-42,  394 

City  manager,  in  Dayton,  448- 
450;  powers,  449-450;  expert- 
ness,  452 

City-manager  plan,  of  municipal 
government,  372-373,  445-453; 
definition,  445-446 ;  develop- 
ment and  spread,  446;  method 
of  adoption,  446-447 ;  Daj'ton 
plan  (see  Dayton)  ;  Ashtabula 
plan,  451;  results,  451-453;  con- 
trol over  appropriations  and  ex- 
penditures, 545 

City  Managers'  Year  Book,  452 

City  planning,  meaning,  491-492 ; 
progress  in  America,  492-493, 
496 ;  boards,  493 ;  difficulties, 
404-495;  cost,  495 

Civil  Rights  Cases,  239 

Civil-service  regulations,  for  mak- 
ing appointments  in  states,  141 ; 
examinations,  141 ;  removals, 
141-142  ;  results,  142  ;  beginnings 


of,  in  cities,  371;  for  appoint- 
ments of  mayor,  in  Boston,  428, 
459-460,  461 ;  municipal,  types 
of  commissions  for,  466-467 ; 
Massachusetts  plan,  467 ;  prin- 
ciples, 467-468;  use  in  connection 
with  promotions  and  dismissals, 
468 

Clark,  W.  L.,  Elementary  Law, 
246  n.,  256  n.;   Contracts,  259 

Classification  of  property  for  taxa- 
tion, 538 

Clerks,  county,  329;  of  court,  329; 
town,  336;  in  colonial  boroughs, 
361 

Cleveland,  contains  bulk  of  county 
population,  318;  independent 
executive  departments,  368;  state 
control  of  police  force,  475  ;  small 
expense  of  police,  478-479;  city 
planning,  496 ;  maximum  con- 
sumption of  water,  506 ;  source 
of  water  supply,  508;  sliding 
scale  for  determining  trolley 
fares,  519 

Cleveland,  Frederick  A.,  "Evolu- 
tion of  the  Budget  Idea  in  the 
United  States"  and  "Constitu- 
tional Provision  for  a  Budget," 
232  n. 

Climate  of  the  states,  5 

Close  corporations,  in  colonial 
boroughs,  360-361 ;  after  the 
Revolution,  363 

Coker,  F.  W.,  "Safeguarding  the 
Petition  in  the  Initiative  and 
Referendum,"  109  n. 

Colorado,  amendment  of  constitu- 
tion by  referendum,  35 ;  woman 
suffrage  adopted,  40;  exclusion 
of  appropriations  from  referen- 
dum process,  119;  recall,  126; 
governor's  power  of  removal, 
143;  martial  law  in,  145;  use  of 
mihtia  in  strike,  170;  regulation 
of  mining  industry,  185 ;  recall 
of  judges,  283 ;  recall  of  judicial 
decisions,  283 ;  municipal  home 
rule,  447 

Colorado  Springs,  mayor's  veto 
under  commission  government, 
437;  sewage  farm,  516 

Columbia,  South  Carolina,  school 
expenditures,    528  n. 

Columbus,  Ohio,  water  softened  in, 
507 ;   water  purification   in,   508 

Comity  among  the  states,  13 


556      STATE  AND  MUNICIPAL  GOVERNMENT 


Commission,  as  organ  in  commis- 
sion plan  of  government,  433- 
435 ;  in  city-manager  plan,  447- 

448,  451 

Commission  government  of  cities, 
372,  430-444;  principles,  430; 
origin  and  spread, 43 1-43 2  ;  meth- 
ods of  adopting,  432-433;  the 
commission,  433-435;  adminis- 
trative departments,  435-436, 
466;  mayor,  436-437;  appointive 
officers  and  independent  depart- 
ments, 438 ;  popular  control  over, 
438-480;  merits  and  faults,  441- 
443,  445-446;  results,  443-444; 
control  over  appropriations  and 
expenditures,  545 

Committees,  of  political  parties, 
state,  47-50;  local,  50-51;  rela- 
tion to  candidates  during  cam- 
paigns, 78-79;  state  control  over 
campaign  expenses  of,  88 ;  of  the 
state  legislatures  appointed  by 
speaker,  209 ;  on  rules,  209 ;  varie- 
ties of,  210-213;  conference,  212, 
219-220;  consideration  and  re- 
port of  bills,  219;  party  control 
over,  221;  in  city  councils,  414- 
415;  conduct  of  administration 
by,  454-457 

Common  law,  242-244;  mis- 
demeanors under,  254-256;  re- 
lations in  marriage,  262 ;  rem- 
edies, 266;  procedure  in  civil 
cases,   295-297;    evidence,    299  n. 

Commons,  J.  R.,  Proportional 
Representation,  45  n.,  102  n., 
202  n. 

Comptroller.    See  Auditor 

Condemnation  proceedings  for  ac- 
quiring land  for  streets,  498-499 

Conference  of  governors,  146 

Connecticut,  constitution  of  1818, 
19;  constitutional  convention, 
32;  suffrage  qualification  as  to 
education,  42 ;  no  direct  pri- 
maries in,  68  n. ;  provincial  gov- 
ernor and  council,  132 ;  pardon- 
ing power,  144;  state  police,  171 ; 
appointment  of  board  of  educa- 
tion, 173;  secretary  of  board  of 
education,  174;  compulsory  edu- 
cation, 17s;  early  health  boards, 
182;  representative  districts,  201  ; 
discrimination  against  cities  in 
legislative  apportionment,  202; 
annual  sessions  of  legislature,  202  ; 


no  distinction  between  legal  and 

equitable  remedies,  245-246 ; 
county  taxes,  321;  appointment 
of  county  clerks,  329;  appoint- 
ment of  county  treasurer,  330  n.; 
duties  of  town  clerks,  336  ;  school 
districts  in  towns,  336 
Constable,  in  New  England  towns, 
337;  in  Western  county  districts, 

341 
Constitution,  Federal,  recognizes 
importance  of  the  states,  3-4; 
purposes  of  a  body  politic  in 
preamble,  7 ;  creates  federalism, 
8;  distribution  of  powers  in,  8- 
17;  obligations  and  prohibitions 
on  the  states,  9-13;  supremacy 
of,  16-17;  relation  to  state  con- 
stitutions, 18;  provisions  as  to 
suffrage,  40;  limitations  on  state 
legislatures,  195-196;  limitations 
on  state  taxing  powers,  229; 
limitations  on  state  lawmaking, 
238-239,  241 ;  defines  treason 
252  ;  relation  to  state  courts,  269, 
275-277,  284;  conflict  of  state 
law  with,  302 ;  influence  on  city 
government,  363,  380;  hmita- 
tion  on  city-planning  operations, 

494 

Constitutions,  state,  18-36;  impor- 
tance, 18;  origin,  18-19;  early, 
19-21;  fundamental  principles, 
21-26;  classification,  26;  similari- 
ties in,  26-27;  increasing  length, 
27-28;  typical  contents,  28-30; 
amendment  of,  by  legislatures, 
222-223;  limitations  on  taxing 
power,  230;  limitations  on  debts, 
235-236;  limitations  on  legisla- 
tion, 242 ;  conflicts  of  state  law 
with,  301-302 ;  limitations  on 
cities,  380 

Contracts,  prohibitions  upon  state 
regarding,  10-12;  interstate 
recognition  of,  13;  as  part  of 
state  law,  259-261 ;  considera- 
tion required  in,  259  n.;  defini- 
tion, 259-260;  of  counties,  318- 
319;   liabilities  of  cities  for,  377 

Convention,  party,  in  the  states, 
51-55;  activities,  51-53;  advan- 
tages, 53-54;  disadvantages,  54- 
60 

Conventions,  constitutional,  early, 
20-21;  provided  in  later  consti- 
tutions, 31-35;  composition,  T,i; 


INDEX 


557 


powers,   33-34;   limitations,   35; 
procedure,  35 

Coroner,  329 

Corporations,  provisions  regarding, 
in  state  constitutions,  30;  con- 
tributions to  campaign  funds, 
84,  88,  89;  state  regulation,  190- 
193 ;  regulation  of  banking  and 
insurance  and  securities,  191 ; 
regulation  of  public  utilities, 
191-194;  regulation  of  railroads, 
192 ;  limited  powers  of  legisla- 
ture to  grant  franchises,  197; 
taxation,  228-229;  legal  defini- 
tion, 263-265;  counties  as,  318- 
319 ;  New  England  towns  as,  2^3^ 
360;  school  districts  in  central 
and  Southern  states  as,  339,  340; 
municipal,  345,  374-375;  char- 
tered by  colonial  boroughs,  360 

Correctional  institutions,  180-182; 
state  supervision  of,  180;  prob- 
lems, 180-182;  municipal  depart- 
ment of  corrections,  531-532 

Corrupt  and  illegal  practices,  com- 
parison between  Great  Britain 
and  the  United  States,  85-86 ; 
prohibition  by  various  state 
acts,  86-89;  prohibition  by  con- 
gress, 87 ;  effect,  89 

Council,  city,  proportional  repre- 
sentation used  for  elections,  loi ; 
in  colonial  period,  360-361 ;  later 
development,  363,  365,  367-369, 
370;  history,  409-410;  dechne, 
410;  size  and  terms,  411;  char- 
acter of  members  and  salaries, 
412;  how  chosen,  412-413;  or- 
ganization and  procedure,  414; 
committees,  414-415;  powers, 
415-418;  influence,  418-419;  in 
commission  government,  433- 
435;  in  city-manager  plan,  447- 
448;  conduct  of  administration 
by,  454-457;  election  of  adminis- 
trative heads  by,  458 ;  confirma- 
tion of  mayor's  appointments, 
458;     power    of    appropriation, 

544-547 

Council,  governor's,  in  the  states, 
confirms  appointments,  140,  280, 
325;  acted  as  check  on  colonial 
legislatures,  140 

County,  unit  for  administration  of 
education,  172;  superintendent 
for,  172-173;  unit  for  legislative 
representation,   201-203 ;    courts. 


271,  325-326;  sheriff  as  judicial 
officer,  284-285,  327-329;  in  Eng- 
land, 309;  in  the  colonies,  310- 
313;  general  characteristics,  317- 
320;  definition,  317;  a  corpora- 
tion, 318-319;  powers  and  func- 
tions, 319-320,  529;  seat  of,  320; 
government,  321-322,  332;  types 
of  board,  321-322;  powers  of 
board,  323-325;  administration 
of  justice,  325-329;  prosecuting 
attorney,  326-327;  coroner,  329; 
clerks,  329;  assessors,  330;  treas- 
urer, 330-331;  auditor,  331; 
registrar  of  deeds,  331-332; 
school  officials,  332 ;  districts  as 
subdivisions  in  South  and  West, 

339-341 

County  seat,  320 

Courts,  county,  271,  319,  325-326; 
clerks,  329 

Courts,  municipal,   270,  531-532 

Courts,  state,  in  early  constitutions, 
21;  subject  to  popular  sov- 
ereignty, 23-24 ;  relation  to 
boards  and  commissions,  162- 
163 ;  system  and  structure,  268- 
290;  under  justices  of  the  peace, 
269-270;  intermediate,  270-271; 
probate,     271;     appellate,     271- 

272,  298;  juvenile,  272-274; 
domestic- relations,  274;  small- 
claims,  274-275  ;  land,  275  ;  night, 
275;  women's,  275;  relation  to 
federal  courts,  275-277;  judge, 
277-284;  clerks,  284;  sheriff,  284- 
285,  328-329;  jury,  285-289; 
prosecuting  attorney,  289-290, 
326-327;  procedure  in  criminal 
cases,  291-295;  procedure  in  civil 
cases  at  common  law,  295-297; 
procedure  at  equity,  297-298; 
procedure  in  appeals,  298-301 ; 
power  to  declare  statutes  un- 
constitutional, 301-302 ;  control 
of  administration,  302-304;  as 
agents  of  self-government,  304- 
305 ;  as  means  of  state  control 
over  cities,  391 

Craig  V.  Missouri,  9 

Criminal  law,  251-256;  definition 
of  crime,  251-252;  treason,  252; 
felonies,  252-254;  misdemeanors, 
254-256;    procedure    of    courts, 

291-295 
Cumulative  voting,  use  in  Illinois, 

200 


558      STATE  AND  MUNICIPAL  GOVERNMENT 


Cyclopedia  of  American  Govern- 
ment, 26,  loi  n.,  151  n.,  154  n., 
272  n.,  301  n. 

Dallas,    Texas,    mayor's    veto    in 

commission  government,  437 
Dartmouth   College  Case,   11,   190, 

204 

Dayton,  Ohio,  city-manager  plan 
of  government,  446,  447-451; 
the  commission,  447;  the  mayor, 
447-448;  the  city  manager,  448- 
449;  administrative  departments, 
450,  458,  466 ;  financial  provisions, 
450-451 ;  revenue  from  miscella- 
neous sources,  534  n. 

Dealey,  J.  Q.,  Growth  of  State 
Constitutions,  18  n.,  19  n.,  31  n., 
32  n.;  classification  of  state  con- 
stitutions, 26 

Death  rate,  in  London,  348;  in 
cities,  351-352,  354-355 

Debate,  freedom  of,  in  state  leg- 
islatures, 218;  in  New  England 
town  meetings,  334-335 

Debts,  state,  235-237;  limitations, 
235-236;  payment  through  sink- 
ing funds,  236-237;  payment 
through  serial  bonds,  237; 
municipal  power  of  council  to 
incur,  416-417;  in  general,  548- 
550;  amount,  548-549;  limits, 
549-550;   payment,  550 

Delaware,  Maryland,  early  consti- 
tution framed  by  convention,  20; 
term  of  governor  under  early 
constitution,  20;  appointment  of 
judges  under  early  constitution, 
21 ;  amendment  of  early  consti- 
tution, 31;  suffrage  qualification 
in,  42  ;  no  direct  primaries,  68  n.; 
appointment  of  secretary  of 
state,  150;  size  of  lower  house, 
203 ;  no  compensation  paid  to 
legislature,  206 ;  business  taxes, 
229 ;  appointment  of  judges,  325  ; 
hundreds,  340;  no  commission- 
governed  cities  in,  432 

Delegates  to  state  conventions, 
character  and  type  of,  54 ;  nom- 
inated by  primaries,  63 

Democratic  party,  organization  of, 
in  New  York  County,  57-58 

Demurrer,  296 

Denver,  juvenile  court,  272;  city 
and  county  bounrlaries  coincide, 
318;  garbage  disposal,  513  n. 


Departments,  in  cities,  growth  of 
special,  from  1850  to  1870,  367- 
368;  under  commission  govern- 
ment, 435-436;  administrative, 
445-463 ;  in  city-manager  plan, 
449-450;  control  of  council  over, 
455-457;  number,  457-458; 
heads,  458-462 ;  organization, 
462;  correlation,  462-463;  sub- 
ordinate officials  and  employees, 
463-469;  civil  service,  466-469; 
and  labor  unions,  469;  police, 
470-479;  fire,  479-485;  health, 
485-490;  building,  490;  city 
planning,  491-496;  streets,  496- 
505;  water,  505-511;  waste  dis- 
posal, 511-513;  sewerage,  513- 
517;  public  utilities,  517-521; 
education,  522-529;  charities  and 
corrections,  529-532 

Des  Moines,  plan  of  commission 
government  and  direct  legisla- 
tion, 407,  431;  election  of  com- 
missioners, 434;  assignment  of 
departments,  435;  popular  con- 
trol by  means  of  direct  legisla- 
tion in,  438-439 

Detroit,  representation  on  county 
board,  322;  popular  election  of 
mayor  in  charter  of  1S24,  364; 
state  control  of  police  force, 
475 ;  fire  board,  482 

Dicey,  A.  V.,  Law  of  the  Constitu- 
tion, 23  n. 

Dillon,   J.   F.,   Law   of   Municipal 
Corporations,       374".,       375  n., 
V376n.,  378  n.,  383  n.,   384  n. 

"Wrcct  legislation.  See  Initiative 
and   referendum 

Direct  method  of  street  construc- 
tion, 502 

Diseases,  activities  of  health  de- 
partments against,  487-489 

Dismissal  of  municipal  employees,468 

Distribution  of  powers  in  the 
United  States,  9-13 

Districts,  election,  in  the  states, 
45-46;  county,  in  South  and 
West,  339-341 

Divorce,  recognition  of,  among 
the  states,  13 ;  as  legal  measure, 
261-262 

Dodd,  W.  F.,  Revision  and  Amend- 
ment of  State  Constitutions, 
i8n.,  31  n.,  32  n.,  :.,^  n. 

Domestic  relations,  as  part  of  state 
law,    261-262 ;     termination    of. 


INDEX 


559 


261-262;  legal  status  in,  262; 
court  of,  274.     Sec  also  Divorce 

Dubois,  W.  E.  B.,  "The  Social 
Effects   of   Emancipation,"   44  n. 

Due  process  of  law,  meaning  in 
Fourteenth  Amendment,  12,  239 

Dutton,  S.  T.,  and  Snedden,  David, 
Administration  of  Public  Educa- 
tion in  the  United  States,  522  n. 

East  Chicago,  Illinois,  revenue  from 
special  assessments,  534 

Eddy,  H.  P.    See  Metcalf,  Leonard 

Education,  as  qualitication  for 
suffrage,  42-44,  342,  396;  ad- 
ministration in  the  states,  172- 
176;  school  districts  and  county 
as  units,  172;  county  superin- 
tendent, 172-173;  state  super- 
vision, 173;  state  boards,  173- 
174;  state  superintendents,  174- 
175;  financial  aid  of  state  in, 
17s;  compulsory,  175;  train- 
ing of  teachers,  176;  state 
universities  and  libraries,  176; 
control  over,  by  counties,  332 ; 
school  committees  in  towns,  336; 
school  districts  in  townships, 
339 ;  school  districts  in  Southern 
and  Western  counties,  340-341 ; 
school  districts  in  cities,  365 ; 
early  school  systems  in  cities, 
367;  proper  control  of  state  over, 
389;  under  commission  govern- 
ment, 43S;  separate  from  other 
municipal  administration,  457; 
and  public  health,  489;  organ- 
ization of  school  department, 
522-523;  school  board,  523-524; 
superintendent,  524-525 ;  teach- 
ers, 526-527;  school  plant,  527; 
functions  of  school  system,  527- 
528;  finance,  528-529.  See  also 
Schools 

Edwards,  G.  E.,  The  Grand  Jury, 
285 

Election,  of  governor,  133 ;  of  lieu- 
tenant governor,  150;  of  secre- 
tary of  state,  150;  of  attorney- 
general,  151;  of  state  treasurer, 
152-153;  of  auditor  or  comptrol- 
ler, 153;  of  county  superintend- 
ent of  education,  172-173;  of 
state  judges,  278-280,  282;  of 
county  judges,  325;  of  municipal 
judges,  532;  of  prosecuting  at- 
torneys, 326;  of  sheriffs,  327;  of 


coroner,  329;  of  county  clerks 
and  clerks  of  court,  329;  of 
county  treasurer,  330;  of  town 
officers,  334,  335,  336;  of  mayor, 
363,  364-365,  421;  of  council,  by 
wards,  412-413;  of  council,  at 
large,  413 ;  of  council,  by  a  com- 
bination method,  414;  of  com- 
missioners under  commission  gov- 
ernment, 434;  of  mayor  in  com- 
mission government,  436  ;  of  com- 
missioners under  city-manager 
plan,  447,  451;  of  mayor  under 
city-manager  plan,  447 ;  of  city 
manager  under  city-manager  plan, 
448-449 ;  of  heads  of  administra- 
tive departments,  458 ;  of  school 
boards,  523 ;  of  overseers  of  the 
poor,  530 

Elections,  frequency  of,  59 ;  laws 
governing,  89-91 ;  officers  for, 
89-90;  official  forms  for  returns, 
90;  policing  of  polls,  90-91; 
registration  necessary  for  voting 
in,  91 ;  secrecy,  91 ;  ballot  at, 
91-99;  absent  voting,  99-100; 
preferential  voting,  101-102  ;  pro- 
portional representation,  102- 
104;  submission  of  initiative  and 
referendum  measures  at,  119- 
120;  duties  of  county  boards, 
324-325;  in  New  England  town 
meetings,  334;  in  townships, 
338;  control  of  state  over,  in 
cities,  388-389;  municipal,  gen- 
eral conduct  of,  401-403 

Electorate,  organization,  39-60; 
divided  into  districts,  45-46 ;  ac- 
tion, 61-76;  campaigns,  77-91; 
and  the  ballot,  91-99;  absent 
voting,  99-100;  preferential  vot- 
ing, 101-102;  proportional  repre- 
sentation, 102-104;  initiative, 
referendum,  and  recall,  105-128; 
effect  of  referendum  on,  123-124; 
action  in  choosing  judges,  278- 
279;  municipal,  393-403 

Emergency  legislation  and  the 
referendum,  11 7-1 19 

Eminent  domain,   249,  498 

Employees,  municipal,  number,  464 ; 
influence  of  politics  on  appoint- 
ment, 465-466 ;  civil-service  re- 
form, 466-468 ;  promotion  and 
dismissal,  468 ;  pensions,  468-469 ; 
connection  with  labor  unions, 
469 


56o      STATE  AND  MUNICIPAL  GOVERNMENT 


England,  corrupt  and  illegal  prac- 
tices in,  85-86 ;  common  law, 
242-244;  equity,  244-245;  local 
institutions  as  basis  for  Ameri- 
can, 309-310,  313;  residence  re- 
quirement for  voting,  396 ;  service 
on  council  committees,  415;  term 
and  power  of  mayors,  422  n.; 
mayor's  salary,  423 ;  mayor's 
business  experience,  424;  mayor 
has  no  veto  power,  425;  conduct 
of  municipal  administration  in, 
454,  456,  461 ;  municipal  owner- 
ship, 521;  poor  relief,  529 
Equal  protection  of  the  laws,  mean- 
ing in  Fourteenth  Amendment,  12 
Equity,  244-246;  remedies  in,  267; 
procedure  in  civil  cases,  297- 
298;  in  financial  matters,  298  n.; 
evidence,  299  n. 
Ex  post  facto  law,  11 
Excess  condemnation,  498-499 
Executive  department,  governor, 
131-148;  decentralization,  131- 
132;  state  administration,  149- 
193;  composition,  149-153;  re- 
lation between  branches  and  to 
other  departments,  154,  161-163; 
mayor,   360,   363,   364-365,   370, 

372-373,  41Q-429,  436-438,  443, 
447-448 ;  municipal  administra- 
tion, 454-550 

Expenditures  of  cities,  for  police, 
478-479;  for  streets,  499-500; 
for  water  supply,  510;  for 
sewerage  and  sewage  disposal, 
517;  for  schools,  528-529;  gen- 
eral, 533,  542-547;  steady  in- 
crease, 542-543 ;  appropriations, 
544;  control  and  disbursements, 
544-545;  budgets,  545-547 

Expenditures  of  states,  230-235 ; 
causes  of  increase,  231 ;  budget 
system,  232-235 

Experts,  in  city  government,  city 
manager,  452;  heads  of  adminis- 
trative departments,  459 ;  in  con- 
nection with  board  system,  462 ; 
school  superintendent,  525 

Extradition,  13 

Fairlie,  J.  A.,  "The  State  Gov- 
ernor," 132  n.,  147  n.;  "Veto 
Power  of  the  State  Governor," 
136  n.;  "Revenue  and  Financial 
•Administration,"  152  n.;  in 
American    Political   Science    Re- 


view, 164  n.;  Local  Government 
in  Counties,  Towns,  and  Villages, 
3ion.,  314,  316  n.,  319,  321  n., 
322,  323  n.,  326  n.,  327,  330  n., 
331  n.,  333  n-,  337  n.,  339  n., 
341  n. ;  Essays  in  Municipal  Ad- 
ministration, 359  n.,  381,  419  n.; 
Municipal  Administration,  362  n., 
364  n.,  36S,  368  n.,  409  n.,  419  "-, 
471  n.,  474  n-,  479".,  482  n., 
484  n.,  542  n. 

Fall  River,  Massachusetts,  death 
rate  of  children,  351 

Federal  government,  created  by 
Constitution,  8 ;  powers  delegated 
to,  8-9,  14;  prohibitions  on,  14- 
15;  commerce  regulations,  15- 
16;  supremacy,  16-17;  regula- 
tion by  Congress  of  campaign 
expenses,  87 ;  relation  of  laws  to 
state  laws,  238-239,  275-277; 
juvenile  court  laws,  272  n.;  Judi- 
ciary Act  of  1916,  276,  2S4 

"Federalist,  The,"  25 

Felonies,  252-254 

Filtration,  of  water  supplies,  508- 
509;  of  sewage,  515-516 

Finance,  clauses  in  state  constitu- 
tions relating  to,  29;  passage  of 
legislation  regarding,  220;  state, 
225-237;  revenue, 225-230; taxa- 
tion, 225-230;  expenditures,  230- 
235;  budget  system,  232-235; 
debts,  235-237 

Finance,  county,  administration  of, 
319,  323-324;  officers,  330-331 

Finance,  municipal,  in  colonial  bor- 
oughs, 362;  later,  365,  37i,  533" 
550;  proper  control  of  state  over, 
389;  powers  of  city  council,  416- 
417;  powers  of  mayor,  426-427; 
in  commission-governed  cities, 
443-444 ;  provisions  in  Dayton 
city-manager  plan,  450-451;  re- 
sults of  city-manager  system, 
452;  cost  of  police,  478-479;  ex- 
pense connected  with  city  plan- 
ning, 494-495 ;  cost  of  streets, 
499-500;  cost  of  paving  and 
sidewalks,  504;  cost  of  water 
supply,  510;  cost  of  sewerage 
and  sewage  disposal,  517;  cost 
of  schools,  528-529;  cost  of 
municipal  government,  533  ;  rev- 
enues, 534-542 ;  expenditures, 
543-547;  accounting,  547-548; 
debts,  548-550 


INDEX 


561 


Finley,  J.  H.,  and  Sanderson,  J.  F., 
American  Executive  and  Execu- 
tive Methods,  132  n.,136  n.,i54n. 

Fire,  protection  against,  in  cities, 
365,  366-367,  481-484;  loss  from, 
479-480;  prevention,  480-481; 
personnel  of  fire  department,  482  ; 
appliances  for  fighting,  482-483 ; 
apparatus  for  fighting,  484;  cost 
of  fire  department,  483-484 

Florida,  percentage  of  registered 
voters,  45 ;  limitation  on  leg- 
islative action,  135 ;  governor's 
power  of  removal,  143 ;  appoint- 
ment of  county  judges,  325;  elec- 
tion districts,  340;  special  stat- 
utes relating  to  cities  forbidden, 

367 

Foreign  affairs,  prohibition  on  states 
from  engaging  in,  9 

Fosdick,  R.  B.,  American  Police 
System,  471  n.;  European  Police 
Systems,  471  n. 

France,  term  of  mayor,  422;  no 
residence  requirement  for  voting, 
396 ;  conduct  of  municipal  ad- 
ministration in,  454 

Franchises,  power  of  city  council 
over,  417;  taxation  of,  228-229, 
S39-540;  elements  of,  authorities 
granting,  518;  duration,  518- 
519;  regulation  of  rates,  519- 
520;  reversion  of  plant,  520 

Freemen  in  colonial  boroughs,  361 

Frothingham,  L.  A.,  Brief  History 
of  the  Constitution  and  Govern- 
ment of  Massachusetts,  211  n. 

Galveston,  Texas,  origin  of  com- 
mission government  in,  372,  430- 
431 ;  salary  of  commissioners,  435 

Gans,  H.  S.,  "The  Public  Prosecu- 
tor," 326  n. 

Garbage,  disposal  of,  513 

Gardner,  C.  O.,  "Problems  of  Per- 
centages in  Direct  Government," 
114  n.,  121  n. 

General-property  tax,  225-227,  535- 

537 
Georgia,  foreign-born  in,  4;  fram- 
ing of  early  constitution,  20; 
bicameral  legislature  provided 
under  early  constitution,  21  ;  elec- 
tion of  judges  under  early  con- 
stitution, 21;  suffrage  qualifica- 
tion, 42  ;  direct  primaries,  682  ; 
majority  vote  required  for  elec- 


tion of  governor,  133 ;  annual 
sessions  and  term  of  legislature, 
203;  business  taxes,  220;  debt 
restrictions,  235;  election  of 
judges,  278,  325;  organization  of 
counties,  322;  jurisdiction  of 
county  courts,  326;  militia  dis- 
tricts, 340 
Germany,  present  age  qualification 
for  suffrage,  40;  term  and  power 
of  burgomaster,  422  n.;  burgo- 
master's salary,  423 ;  burgomas- 
ters as  administrators,  424 ;  con- 
duct of  municipal  administration 

in,  454 

Gerrymander  in  legislative  appor- 
tionment, 202 

Goodnow,  F.  J.,  Principles  of 
the  Administrative  Law  of  the 
United  States,  302  n.;  Munic- 
ipal Home  Rule,  374  n.,  379  n., 
383  n.;  Pontics  and  Administra- 
tion, 464  n. 

Goodnow,  F.  J.,  and  Bates,  F.  G., 
Municipal  Government,  345  n., 
349,  351  n-,  356  n.,  374  "-,  376  n., 
377  n.,  379  n.,  383  n.,  409  n., 
415  n.,  419  n.,  422  n.,  470  n., 
471  n.,  472-473,  474  n.,  484 "-, 
491  n.,  519  n.,  520  n.,  523  n., 
533  n.,  547  n.,  548  n. 

Governor,  state,  in  early  consti- 
tutions, 20-21;  in  general,  131- 
148;  colonial,  132;  election,  132- 
133;  term,  133;  removal,  133- 
134;  salary,  134;  legislative  pow- 
ers, 134-139;  the  veto,  136-139; 
power  of  appointment,  139-144; 
council  as  check,  140,  190,  280, 
325;  power  of  removal,  142-143, 
328;  power  of  pardon,  144;  mili- 
tary power,  144-145;  as  repre- 
sentative of  the  state,  146-147 ; 
types  of,  146-147 ;  in  popular 
estimation,  147-148;  relation  to 
boards  and  commissions,  162 ; 
duty  toward  law  enforcement, 
169-171;  influence  of,  on  legisla- 
tion, 213-214;  approval,  220; 
prepares  budget,  233-235 ;  ap- 
points judges,  278,  280-281,  325, 
326 

Grand  jury.    See  Jury 

Grandfather  clause,  in  regard  to 
the  suffrage,  43-44 

Grand  Rapids,  Michigan,  city- 
manager  plan  in,  446 


562      STATE  AND  MUNICIPAL  GOVERNMENT 


Greene,  E.  B.,  The  Provincial  Gov- 
ernor, 131  n. 

Greenville,  Texas,  mayor's  veto  in 
commission  government,  437  n. 

Cidnn   v.    United  States,   43 

Habeas   corpus,    writ    of,    266 

Hadley,   A.   T.,   Economics,   353  n. 

Hamilton,  Ohio,  revenue  from 
public-service  enterprises,    534  n. 

Hand,  Learned,  "The  Elective  and 
Appointive  Methods  of  Selection 
of  Judges,"  278  n. 

Harlan,  Justice,  on  the  police 
power,  276 

Hart,  Hastings  H.,  plan  for  juvenile 
court,  272  ;  Preventive  Treatment 
of  Neglected  Children,  272  n. 

Hartford,  Connecticut,  keeps  its 
town  organization,  333-334;  es- 
tablishes first  city-planning  com- 
mission, 493 

Hatton,  A.  R.,  "The  Ashtabula 
Plan,"   102  n.,  451  n. 

Haynes,  G.  H.,  Initiative  and 
Referendum,  105  n.;  "People's 
Rule,"  lion.;  Representation  in 
State  Legislatures,   200  n.,  207  n. 

Hazen,  Allen,  Clean  Water  and 
How  to  Get  It,  505  n.,  50S  n. 

Heads  of  municipal  departments, 
Boston  plan,  428,  459-400; 
method  of  choice,  458;  qualifi- 
cations, 459;  terms,  460-461 ;  re- 
movals, 461 ;  salaries,  461 ;  board 
or  commissioner,  461-462,  476, 
482,  486,  509,  S16,  522-523,  53°. 
531.   See  also  Administration 

Health,  regulation  of  industry  on 
ground  of,  185-186;  insurance, 
187;  in  cities,  355-356.  See  also 
Public  health 

Highpoint,  North  Carolina,  veto 
of  mayor  in  commission  govern- 
ment, 437 

Hoar,  R.  S.,  Constitutional  Con- 
ventions, 18  n.,  33  n. 

Hobson,  J.  A.,  Evolution  of  Mod- 
ern Capitalism,  355  n. 

Holcombe,  A.  N.,  State  Govern- 
ment, 14  n.,  21  n.,  36  n.,  44-45, 
46  n.,  82,  85  n.,  86  n.,  88,  102  n., 
105  n.,  121,  132  n.,  136  n.,  138  n., 
149  n.,  158  n.,  200  n.,  210,  212, 
213  n.,  217  n.,  278  n.,  301  n., 
302  n.,  304  n.,  305  n.,  397  n.;  on 
popular  sovereignty,  22 


Holmes,  Justice,  on  interference  of 
Fourteenth  Amendment  with  the 
states,  276-277 

HolyolvC,  Massachusetts,  revenue 
from  public-service  enterprises, 
534  n. 

Home  rule,  municipal,  372,  383- 
388;  extent  of,  3S4-385;  char- 
ter-making, 385 ;  limitations  on 
charter-making,  385-386 ;  choice 
of  officers,  386-387 ;  municipal 
functions,  387;  political  relation 
of  city  to  state,  387-388;  adop- 
tion of  commission  government 
under,  433 ;  adoption  of  city- 
manager  plan,  447 

Hospitals,  530 

Houston,  Texas,  adoption  of  com- 
mission government,  431 ;  mayor's 
power  of  appointment,  437; 
mayor's  veto,  43  7  n.;  election  of 
fiscal  officers,  438 

Howard,  G.  E.,  Introduction  to 
the  Local  Constitutional  History 
of  the  United  States,  310  n. 

Hull,  R.  M.,  "Preferential  Voting 
and  How  it  Works,"  loi  n. 

Humphrey,  J.  H.,  Proportional 
Representation,   102  n. 

Hurd,  Harvey  H.,  plan  for  juvenile 
courts,  272 

Idaho,  vote  required  for  amend- 
ment of  constitution,  32;  woman 
suffrage  adopted,  40;  nonpar- 
tisan primaries,  67 ;  preferential 
voting  required  for  party  elec- 
tions, 73;  recall  in,  126,  127;  ad- 
ministrative reorganization,  166; 
department  of  law  enforcement 
provided,  169;  term  of  legisla- 
ture, 203 ;  granting  of  divorce  in, 
262 

Illinois,  estimated  wealth,  5 ;  vote 
required  for  amendment  of  con- 
stitution, 32;  absent  voting,  100; 
proportional  representation,  102; 
governor's  term,  133;  governor's 
salary,  134;  governor's  power 
over  legislature,  135;  reorganiza- 
tion through  administrative  code, 
164;  regents  of  state  university, 
176;  cumulative  voting  in  elec- 
tion of  legislature,  200;  size  of 
upper  house,  203 ;  salaries  of  leg- 
islators, 206 ;  meetings  of  com- 
mittees, 211  n.;  debt  restrictions. 


INDEX 


563 


235-236;  juvenile  courts,  272; 
small-claims  courts,  27411.;  ad- 
ministration of  poor  relief  by 
county,  324;  county  courts,  326; 
treasurer  of  Cook  County,  330; 
assessment  of  property,  330  n.; 
township  officers,  338;  villages, 
341 ;  special  legislation  for  cities 
forbidden,  370;  referendum  on 
special  legislation  for  cities,  383, 
407 

Illinois,  Report  of  the  Efficiency 
and  Economy  Committee,  152  n. 

Immigration,  effect  on  cities,  349- 

351,  356 

Immunities.  See  Privileges  and  im- 
munities, etc. 

Impeachment,  of  governor,  133 ;  of 
judges,  282 

Incineration,  of  rubbish,  512;  of 
garbage,  513 

Income  tax,  state,  227-228,538-539 

Indiana,  vote  required  for  amend- 
ment of  constitution,  32 ;  consti- 
tutional convention  provided, 
32 ;  residence  qualification  for 
voting,  41 ;  publicity  pamphlets, 
80  n. ;  ballot  used,  93 ;  absent- 
voting  law,  100;  governor's  term, 
133 ;  administrative  consolida- 
tion, 166;  county  superintendent 
of  education,  172-173;  attitude 
of  courts  toward  legislative  ap- 
portionment, 203 ;  no  distinction 
between  legal  and  equitable  rem- 
edies, 245-246;  early  local  gov- 
ernment, 314;  township  meetings, 
338;  township  trustees,  338;  vil- 
lages, 341 ;  extension  of  suffrage 
to  noncitizens,  394 ;  no  commis- 
sion-governed cities,  432;  munic- 
ipal debt  limits,  549 

Indianapolis,  low  expenditures  for 
public-health  work,  490 

Indictment  by  grand  jury,  286- 
287,  292 

Initiative,  use  of,  for  amending 
state  constitutions,  36-37;  in 
Massachusetts,  36;  definition  of 
loti;  constitutional,  108;  direct 
108-109;  indirect,  109;  petitions, 
1 09-1 16;  framing  of  measures, 
iio-iii;  submission,  116;  effect 
on  state  legislature,  223-224;  in 
connection  with  commission  gov- 
ernment, 438-439;  in  city-man- 
ager plan,  on  ordinances,  448 


Initiative  and  referendum,  for 
amending  state  constitutions,  35- 
36;  in  general,  105-126;  distinc- 
tion between,  106;  varieties,  106- 
109;  common  features,  109;  the 
petition,  109-116;  and  emergency 
legislation,  11 7-1 19;  in  relation 
to  the  legislature,  196;  effect  on 
legislature,  223-224;  in  cities, 
406-408;  as  means  of  popular 
control  over  commission  govern- 
ment, 438-440;  city-manager 
plan,  448 

Injunction,  writ  of,  267 

Insurance,  health,  187 

Insurance  companies,  regulation  by 
state,  191 

Intangibles,  taxation  of,  226-227, 
537-538 

International  law  as  part  of  state 
law,  242 

Interstate  Commerce  Commission 
of  the  United  States,  conflict  of 
state  commissions  with,  192 

Iowa,  estimated  wealth,  5 ;  re- 
vision of  constitution,  33 ;  suf- 
frage conditioned  on  residence, 
41,  395;  no  classes  disqualified 
from  voting,  44;  nonpartisan 
primaries  adopted,  67;  election, 
73,  74;  type  of  ballot  used  in, 
93-94;  county  superintendent  of 
education,  172-173;  representa- 
tive districts,  201 ;  debt  restric- 
tions, 235-236;  township  meet- 
ings and  boards,  338;  villages, 
341 ;  special  statutes  for  cities, 
forbidden,  367 ;  commission- 
government  law  for  cities,  431, 
434;  taxation  of  intangible  prop- 
erty, 538 

Italy,  no  residence  requirement  for 
voting,  396  ;  term  of  mayor,  422  ; 
conduct  of  municipal  administra- 
tion, 454 


Jacksonville,  Florida,  negro  popu- 
lation in,  349  n.;  revenue  from 
public-service   enterprises,   534  n. 

James,  H.  G.,  Local  Government 
in  the  United  States,  310  n., 
317  n.,  319  n.,  321  n.,  323  n., 
326  n.,  327  n.,  333  n. 

Jameson,  J.  A.,  Treatise  on  Con- 
stitutional Conventions,  18  n. 


564      STATE  AND  MUNICIPAL  GOVERNMENT 


Jersey  City,  commission  govern- 
ment in,  432;  poor  relief  ad- 
ministered by  county,  529 

Johnson,  L.  J.,  "Preferential  Vot- 
ing," loi  n. 

Jones,  C.  L.,  Statute  Law-making 
in  the  United  States,  212  n. 

Journals  of  the  Continental  Con- 
gress, 19  n. 

Judges,  county,  325 

Judges,  state,  how  chosen  in  early 
constitutions,  21,  278;  may  not 
be  removed  by  governor,  143 ; 
functions,  277;  relation  to  jury, 
277,  286,  289  n.;  method  of 
choice,  278-281;  terms,  281;  re- 
moval, 282-283 ;  charge  of,  in 
criminal  cases,  293-294;  sentence 
pronounced  by,  294-295 

Judicial  review,  effect,  in  state  con- 
stitutions, on  separation  of  pow- 
ers and  popular  sovereignty,  25- 
26;  of  the  powers  and  acts  of 
administrative  officers,  302-304; 
in  England,  309-310.  See  also 
Supreme  Court 

Jury,  decision  of  facts  and  law  by, 
277;  may  ask  judge  for  further 
instructions,  277  n.;  in  general, 
285-289;  actual  working  of  sys- 
tem, 288-289;  merits,  289;  selec- 
tion, 292-293;  verdict,  294,  296; 
as  agency  of  self-government, 
304-305;   coroner's,  329 

Jury,  grand,  285-287 

Jury,  petit,  287-288 

Justices  of  the  peace,  jurisdiction, 
269-270;  in  New  England  towns, 
336-337;  in  townships,  339; 
Southern  and  Western  county 
districts,  340,  341 

Juvenile  courts,  origin  and  develop- 
ment, 272;  purpose  and  prin- 
ciples,   273;    procedure,   273-274 

Kalamazoo,  Michigan,  adoption  of 
proportional  representation,  102; 
effect  of  proportional  representa- 
tion, 403 

Kansas,  nonpartisan  primary 
adopted,  O7;  recall,  120;  term 
of  governor,  133;  administrative 
consolidation,  165;  county  super- 
intendent of  education,  172-173; 
publication  of  textbooks,  175; 
regulation  of  securities,  192; 
compensation  paid  to  legislators, 


206;  small-claims  court,  2  74n.; 
recall  of  judges,  283 ;  township 
meetings,  338;  villages,  341;  spe- 
cial legislation  for  cities  for- 
bidden, 367 ;  extension  of  fran- 
chise to  noncitizens,  394 

Kansas  City,  Kansas,  revenue  from 
public-service  enterprises,  534 

Kentucky,  compensation  paid  to 
legislators,  206 ;  county  courts, 
271;  early  local  government, 
314;  governor's  veto  in  constitu- 
tion of  1790,  316;  organization 
of  counties,  322;  jurisdiction  of 
county  courts,  326;  appointment 
of  county  treasurer,  330  n. ; 
magisterial  district,  340 

Kimball,  Everett,  National  Govern- 
ment, 8,  23  n.,  77  n.,  146  n.,  239  n., 
388  n. 

Kittery,  Maine,  chartered  as  colo- 
nial borough,  359 

Labor,  provisions  regarding,  in 
state  constitutions,  30 ;  connec- 
tion of  municipal  employees  with 
unions,  469 

Labor  law,  state  administration  of, 
185-189;  workmen's  compensa- 
tion laws,  186-187;  health  insur- 
ance, 1S7 ;  regulation  of  hours, 
187;  child  labor,  187-188;  mini- 
mum wages,  188;  conciliation 
and  arbitration,   188 

La  Follette,  Robert  M.,  governor 
of  Wisconsin,  recommendation 
as  to  lobbyists,  215-216 

Law,  supremacy  in  state  consti- 
tutions, 23-24;  definition,  231, 
239-240 ;  distinction  in  state 
constitutions  between  statutory 
•  and  constitutional,  28;  affected 
by  the  use  of  direct  legislation 
in  amending  constitutions,  36; 
martial,  145;  enforcement  in 
states,  168-172;  enforcement  by 
governor,  109;  enforcement  by 
agents  of  governor,  169;  en- 
forcement by  militia,  170-171; 
enforcement  by  state  police, 
171  ;  enforcement  by  boards  and 
commissions,  171-172;  impor- 
tance of  state,  compared  with 
federal,  238-239;  statutory,  241- 
242  ;  international,  242  ;  the  com- 
mon law,  242-244;  equity,  244- 
246 ;  rights  of  persons  and  prop- 


INDEX 


56s 


erty,  246-251 ;  criminal,  251-256; 
torts,  256-259;  contracts,  259- 
261 ;  domestic  relations,  261-262  ; 
partnerships  and  corporations, 
262-265  ;  remedies,  265-267  ;  sub- 
stantive and  adjective,  265 

Law,  state,  sources,  238-246; 
federal  limitations  on,  241 ;  state 
limitation  on,  242 ;  rights  of 
persons  and  property,  246-251; 
criminal,  251-256;  torts,  256- 
259;  contracts,  259-261;  domes- 
tic relations,  261-262;  partner- 
ships and  corporations,  262-263 ; 
remedies,  265-267;  conflicting 
with  federal  law,  271-272,  275- 
277,  284,  301-302;  may  be  de- 
clared unconstitutional  by  the 
courts,  301-302 

Lawrence,  Massachusetts,  foreign- 
born  population,  349 

Legislation,  special,  197-198;  of 
the  state  legislatures,  213-224; 
the  lobby,  214-216;  the  legisla- 
tive reference  bureau,  216-217; 
drafting,  217;  amount,  217-218; 
procedure  in  enacting,  217-220; 
financial,  220;  party  influence 
on,  220-222;  strike,  222;  quality, 
223-224;  financial,  231-232; 
power  of  city  council  to  pass, 
415-418;  powers  of  m.ayor,  425- 
426.  See  Law,  state;  see  also 
Special  legislation 

Legislative  reference  bureaus,  216- 
217;  in  Wisconsin,  216 

Legislature,  state,  in  early  consti- 
tutions, 21;  restrictions  on,  in 
state  constitutions,  27,  196-198; 
bicameral,  21,  198-200;  power  to 
am.end  constitutions,  31-32; 
power  of  governor  over,  135- 
139;  relation  to  boards  and  com- 
missions, .  161-162  ;  in  general, 
194-224;  importance,  194-195; 
restrictions  on,  in  Federal  Con- 
stitution, 195-196 ;  table  of  mem- 
bers, terms,  sessions,  and  salaries, 
204-205 ;  apportionment,  200- 
203;  size,  203;  sessions,  203,  206; 
terms,  203-204;  salaries,  206; 
work,  207-224;  officers,  207-210; 
speaker  of  lower  house,  207-209; 
committee  system,  210-213  ;  Mas- 
sachusetts committee  system,  210- 
211;  normal  committee  system, 
211-212;  New  York  system,  212- 


213;  lawmaking  by,  214-222; 
framing  constitutional  amend- 
ments, 222-223;  effect  of  direct 
legislation  on,  223-224;  connec- 
tion with  budget  system,  233 ; 
election  of  judges  by,  280,  325; 
city  charters  granted  by,  363 ; 
control  over  municipal  taxation, 
366;  control  over  city  charters, 
367,  370,  372,  374-375,  376;  con- 
trol over  municipal  administra- 
tion, 368,  369  ;  control  over  cities, 
374-392;  restrictions  on  control 
over  cities,  380-388;  proper  ex- 
ercise of  control  over  cities,  388- 
390;  methods  of  control  over 
cities,  390-391 

Lewis,  Howard  T.,  in  National 
Municipal  Review,  166  n. 

Lewis,  N.  P.,  The  Planning  of  the 
Modern  City,  491  n. 

Liability,  of  the  county  for  dam- 
ages due  to  negligence,  318-319; 
of  cities  for  contracts,  377;  of 
cities  for  torts,  378 

Liberty,  meaning  in  Fourteenth 
Amendment  as  interpreted  by 
the  courts,  11-12 

Libraries,  state,  176 

License  Cases,  15,  249 

Lieutenant  governor,  134,  150; 
presides  over  state  senate,  207 

Lincoln,  President,  on  popular  sov- 
ereignty, 22,  39 

Lindsey,  Ben  B.,  as  judge  of  juve- 
nile court,  272,  274;  "My  Les- 
son from  the  Juvenile  Court," 
272  n. 

Literacy,  as  qualification  for  the 
suffrage,  42;  in  cities,  356-357 

Lobby,  in  state  legislatures,  214- 
216;  regulation  of,  215-216;  per- 
version of  legislation  by,  222 

Local  government,  evolution  in 
United  States,  309-316;  based 
on  English  institutions,  309-310; 
beginnings  in  America,  310; 
county  type,  3 10-3 11 ;  New  Eng- 
land type,  312  ;  mixed  type,  312; 
colonial  boroughs,  313;  effect  of 
Revolution  on,  313-314;  exten- 
sion to  the  territories,  314;  re- 
cent developments,  315;  extent, 
315-316;  New  England  town, 
333-337 ;  townships  in  central 
states,  337-339;  county  districts 
in    South    and    West,    339-341; 


566      STATE  AND  ^MUNICIPAL  GOVERNMENT 


villages  and  boroughs,  341-342; 
municipal  government,  345-534 

Lockner  v.  AVic  York,  15 

London,  death  rate  in,  348 ;  politi- 
cal parties  in,  405 ;  police  force 
copied  by  American  cities,  474 ; 
fire  prevention,  480 ;  sewage  puri- 
fication, 515;  sliding  scale  for 
gas  rates,  519 

Los  Angeles,  area,  346 ;  small  cost 
of  police,  478;  sewage  farm,  516; 
large  cost  of  schools,  528 

Louisiana,  amendment  of  constitu- 
tion by  convention,  32;  suffrage 
conditioned  on  residence,  41, 
3Q5 ;  suffrage  conditioned  on  lit- 
erac\',  42 ;  suffrage  conditioned 
on  registration,  45;  recall,  126, 
127;  power  of  board  of  health, 
157;  four-year  term  of  legisla- 
ture, 203 ;  civil  and  common  law, 
243  n.;  parishes,  317  n.;  appoint- 
ment of  county  treasurer,  330 ; 
wards,  340 ;  special  legislation  for 
cities  forbidden,  370;  suffrage 
conditioned  on  payment  of  poll 
tax,  397 ;  election  of  heads  of 
departments  under  commission 
government,  435 

Lowden,  Frank  B.,  governor  of 
Illinois,  148;  efforts  toward  ad- 
ministrative  reorganization,   164 

Lowell,  Massachusetts,  water  sup- 
ply, source  of,  507 

Lowell,  A.  L.,  Public  Opinion  and 
Popular  Government,  105  n.; 
Government  of  England,  213  n., 
405  n.;  opinion  on  party  voting 
in  state  legislatures,  213 

McAdoo,  William,  Guarding  a 
Great  City,  471  n. 

McBain,  H.  L.,  Law  and  Practice 
of  Municipal  Home  Rule,  374  n., 
381  n.,  3S3n.,  384".,  385  n. 

McCarthy,  Charles,  Wisconsin  Leg- 
islative Reference  Department, 
216  n. 

Machine,  the,  in  political  parties,  56- 
60 ;  in  Xew  York,  56-58 ;  reasons 
for  existence,  59-60;  work  in  reg- 
istration for  primaries,  62  ;  effect 
of  direct  primary  on, 68-60 ;  effect 
of  initiative  and  referendum  on, 
124-125;  influence  on  Icuislation, 
220-222;  possibility  of  control  in 
commission  government,  443 


McClain,  Emiin,  Constitutional 
Law  of  the  United  States,  235  n. 

McQuillin,  Eugene,  Law  of  Munic- 
ipal Corporations,  362  n.,  413  n. 

Macy,  Jesse,  Party  Organization 
and  Machinery,  79  n. 

Madden  v.  Lancaster  County,  319 

Maine,  suffrage  conditioned  on  resi- 
dence, 40,  395 ;  suffrage  condi- 
tioned on  literacy,  42  ;  signatures 
required  on  referendum  petition, 
115;  emergency  legislation,  118; 
pardoning  power,  144;  appoint- 
ment of  attorney-general,  151; 
appointment  of  district  attorneys, 
152  n.;  appointment  of  agents  to 
enforce  specified  laws,  169  n.;  ap- 
pointment of  justices  of  the 
peace,  336 

Majority,  vote  of,  through  the 
preferential  ballot,  loi,  402;  re- 
quired for  adoption  of  referenda, 
1 21-122;  required  for  election  of 
governor  in  Georgia,  Mississippi, 
and  Vermont,  133 ;  overrepre- 
sented  because  of  legislative  ap- 
portionment, 201-202 

Mandamus,  writ  of,  266 

Marbiiry  v.  Madison,  303 

Marriage,  rate  of,  in  cities,  352-353. 
See  also  Domestic  relations 

Marshall,  Texas,  salary  of  mayor 
and  commissioners,  436  n. 

Marshall,  Chief  Justice,  on  state 
taxation  of  imports,  10;  on  char- 
ters, 11;  on  contracts,  259;  on 
incorporation,  264 ;  on  ministerial 
acts,  303 

Martial   law,   145 

Maryland,  framing  of  early  con- 
stitution, 20;  election  of  judges 
under  early  constitution,  21;  re- 
vision of  constitution,  33  n.;  suf- 
frage qualification,  42  ;  governor's 
power  of  removal,  143 ;  appoint- 
ment of  secretary  of  state,  150; 
appointment  of  district  attorneys, 
152  n.;  regulation  of  lobby,  215; 
executive  budget,  233-234 ;  elec- 
tion districts,  340;  special  legis- 
lation for  Baltimore,  379;  resi- 
dence requirement  for  voting, 
395 ;  taxation  of  intangible  prop- 
erty, 538 

Massachusetts,  density  of  popula- 
tion and  foreign-born  in,  4;  esti- 
mated  wealth,   s;    definition   of 


INDEX 


567 


body  politic  in  preamble  to  con- 
stitution, 7 ;  first  constitution, 
19-21 ;  supremacy  of  law  in  first 
constitution,  23 ;  Declaration  of 
Rights,  23 ;  separation  of  pow- 
ers in  first  constitution,  24 ;  power 
to  take  private  property,  29 ; 
rearrangement  of  constitution, 
29;  amendment  of  constitution 
by  convention,  32 ;  amendment 
of  constitution  by  referendum, 
35 ;  constitutional  convention  of 
I9i7>  35;  amendments  of  1918, 
36;  suffrage  qualification,  early, 
39;  suffrage  qualification,  pres- 
ent, 42  ;  effect  of  suffrage  quali- 
fications, 44,  45 ;  party  registra- 
tion, 64 ;  nomination  by  peti- 
tion, 66  n. ;  information  sent  to 
voters,  80 ;  attempt  to  control 
campaign  expenditures,  86,  87, 
88,  89 ;  election  law,  89 ;  ballot, 
92,  96;  absent  voting,  99,  100; 
majority  vote  abandoned,  loi ; 
constitutional  referendum,  106- 
107  ;  constitutional  initiative,  109, 
iio-iii;  signatures  required  for 
initiative,  115;  emergency  leg- 
islation, 118;  exclusion  of  appro- 
priations from  referendum,  119; 
vote  required  in  referendum, 
121-122;  governor  and  provincial 
council,  132  n.;  governor's  salary, 
134;  governor's  veto  power,  136; 
check  on  appointing  power,  140; 
removal  of  judges,  282 ;  par- 
doning power,  144;  powers  of 
lieutenant  governor,  150;  depart- 
ments of  boiler  inspection  and  of 
health,  160;  movement  toward 
reorganization  of  state  adminis- 
tration, 163,  165 ;  use  of  militia 
in  strikes,  170;  state  police,  171; 
state  aid  to  education,  175  ;  board 
of  charities,  179;  board  of  health, 
early,  182 ;  professional  qualifi- 
cations required  for  board  of 
health,  182  ;  importance  of  health 
commissioner,  183;  minimum 
wage  commission,  188;  depart- 
ments of  labor  and  industries, 
189;  department  of  agriculture, 
190 ;  regulation  of  public  utilities, 
192-193 ;  representative  districts 
for  legislature,  201 ;  sessions  of 
legislature,  203 ;  salaries  of  legis- 
lators,   206;    committee    system, 


2 10-2 1 1,  212,  219;  regulation  of 
lobby,  215;  income  tax,  227;  in- 
creased inheritance  tax,  228  n.; 
debt,  235;  divorces,  262;  juvenile 
court,  272;  appointment  of 
judges,  278,  326;  term  of  judges, 
281;  oath  of  grand  jury,  286  n.; 
population  of  counties,  318; 
county  taxes,  321;  medical  ex- 
aminers, 329;  term  of  selectmen, 
335;  appointment  of  justices  of 
the  peace,  336 ;  optional-charter 
system,  372,382,432-433;  special 
legislation,  379;  poll  taxes,  397; 
recall  in  cities,  408;  election  of 
heads  of  departments  under  com- 
mission government,  435;  civil- 
service  system  for  cities,  467 ; 
origin  of  American  local  educa- 
tion in,  522  ;  plea  for  making  ap- 
propriations, 544 ;  municipal  debt 
limit,  549 

Massachusetts  Constitutional  Con- 
vention (1918),  Bulletins,  99  n., 
loi  n.,  102  n.,  105  n.,  106  n.,  107, 
118  n.,  121  n.,  126  n.,  144  n., 
232  n.,  278  n.,  374  n.,  383  n., 
384  n.,  402  n.,  403,  430  n.,  431  n., 
432  n.,  443  n.,  445  "m  45 i 

Mathews,  J.  M.,  Principles  of 
American  State  Administration, 
132  n.,  138  n.,  149  n.,  151  n., 
iS4n.,  156  n.,  157  n.,  158  n., 
159  n.,  168  n.,  169  n.,  182  n.; 
"New  Role  of  the  Governor," 
147  n.;  "The  New  Stateism," 
147  n.;  in  Cyclopedia  of  Amer- 
ican Government,  301  n. 

Matthews,  Nathan,  Municipal  Char- 
ters, 454  n.,  457 

Mayor,  in  colonial  period,  360; 
down  to  the  present,  363,  364- 
365,  370,  372-373;  development 
of  office,  419-421;  how  elected, 
421;  term,  421-422;  qualifica- 
tions, 422-423;  salary,  423-424; 
characteristics,  423  ;  powers,  424- 
429 ;  power  to  recommend  and  to 
veto  legislation,  424-426;  power 
to  prepare  the  budget,  426-427; 
power  to  appoint,  427-429;  pres- 
ent position,  429;  in  commission 
government,  43 6-43 8,. 443  ;  in  city- 
manager  plan,  447-448 ;  connec- 
tion with  administration,  455 ; 
appointment  of  administrative 
heads  by,  458-460,  465,  530 


568     STATE  AND  MUNICIPAL  GOVERNIMENT 


Memphis,  Tennessee,  source  of 
water  supply,  507 ;  garbage  in- 
cineration, 513 

Mental  Hygiene,  181  n. 

Message,  of  the  governor,  135-136; 
of  the  mayor,  424-425 

Metcalf,  Leonard,  and  Eddy,  H. 
P.,  American  Sewerage  Practice, 
515  n. 

Michigan,  revision  of  constitution, 
33  n.;  revision  of  constitution 
by  referendum,  35;  residence 
qualification  for  voting,  41 ;  no 
referendum  or  deficiency  bills, 
iign.;  legislature  forbidden  to 
repeal  legislation,  122;  recall,  126, 
127;  use  of  militia  in  strikes, 
170;  county  superintendent  of 
schools  and  state  board  of  edu- 
cation, 172-173;  regents  of  state 
university,  203  ;  attitude  of  courts 
toward  apportionment  for  legis- 
lature, 203 ;  term  of  legislators, 
203;  county  board,  321;  removal 
of  sheriffs  by  governor,  328; 
county  auditors,  331 ;  powers  of 
township  officers,  33S;  villages, 
341 ;  municipal  home  rule,  384- 
385,  447 ;  extension  of  franchise 
to  noncitizens,  394 ;  city-manager 
plan   adopted  under  home   rule, 

447 

Militia,  power  of  governor  over, 
144-145,  170;  use  of,  in  law  en- 
forcement, 170;  use  of,  in  strikes, 
1 70-1 7 1 

Mill,  John  Stuart,  proportional 
representation  advocated  by,  102 

Milwaukee,  garbage  incineration, 5 13 

Minimum  wage,  188 

Ministerial  and  discretionary  acts, 

303-304 

Minneapolis,  commission  govern- 
ment rejected  by,  432 

Minnesota,  vote  required  for 
amending  constitution,  32  ;  non- 
partisan primary,  67  n.,  68;  ab- 
sent-voting law,  100 ;  size  of 
senate,  203 ;  no  distinction  be- 
tween legal  and  equitable  rem- 
edies, 245-246 ;  county  clerk  and 
clerk  of  court,  320;  township 
boards,  33S;  villages,  341;  muni- 
cipal home  rule,  384-385,  447 

Minor  v.  Happerselt,  40 

Minority,  choice  by  direct  primary, 
73-74 ;    avoided    in    preferential 


voting,  73-74,  402 ;  possible 
under  plurality  vote,  10 1 

Mississippi,  foreign-born  and  ne- 
groes, 4-5 ;  vote  required  for 
amendment  of  constitution, 
32 ;  amendment  of  constitution 
by  constitutional  convention, 
32;  amendment  of  constitution 
by  referendum,  35 ;  suffrage 
conditioned  on  residence,  41,  395  ; 
suffrage  conditioned  on  literacy, 
42;  election  of  governor,  133  n.; 
limitation  on  legislative  action, 
135 ;  four-year  term  of  legis- 
lature, 203;  election  of  judges, 
278;  later  county  judges  ap- 
pointed, 325;  supervisor's  dis- 
tricts, 340;  suffrage  conditioned 
on  payment  of  poll  tax,  397 

Missouri,  amendment  of  constitu- 
tion by  referendum,  35 ;  dis- 
tricts for  state  party  commit- 
tees, 48 ;  nonpartisan  primaries 
adopted,  67 ;  control  of  cam- 
paign expenditures,  86 ;  regula- 
tions as  to  signers  of  referendum 
petitions,  115;  administrative 
consolidation,  166;  no  distinction 
between  legal  and  equitable  rem- 
edies, 245-246;  county  courts, 
271;  jurisdiction  of  county 
courts,  326;  township  boards  and 
meetings,  338;  special  statutes 
for  cities  forbidden,  370;  home 
rule,  370,  3S4-385,  44T;  exten- 
sion of  franchise  to  noncitizens, 
394;  commission  government  for 
cities,  432 

Missouri,  Kansas,  and  Texa"!  Rail- 
'coay  Company  v.  May,  276- 
277 

Mobile,  Alabama,  school  expendi- 
tures, 528;  miscellaneous  reve- 
nues, 534  n- 

Moderator  in  New  England  town 
meeting,  334 

Montana,  regulation  as  to  residence 
of  signers  of  referendum  peti- 
tions, 115;  appropriations  ex- 
cluded from  the  referendum,  119; 
limitation  on  Icgiskative  action, 
135;  use  of  militia  in  strikes, 
170;  townships,  340;  renewal  of 
city  commissioners,  434 

Montesquieu,  Spirit  of  Laws,  24 

Montgomery,  Alabama,  negro  pop- 
ulation, 349  n. 


INDEX 


569 


Moore,  B.  F.,  History  of  Cumula- 
tive Voting  and  Minority  Repre- 
sentation in  Illinois,  200  n. 

Morse,  W.  F.,  Collection  and  Dis- 
posal of  Municipal  Waste,  512  n. 

Moyer  v.  Peabody,  145 

Municipal  government, development 
in  United  States,  359-373;  in  the 
colonial  period,  359-362 ;  from 
1775  to  1820,  362;  from  1820 
to  1850,  364-366;  from  1850  to 
1870,  366-369;  from  1870  to 
1900,  369-371;  from  1900  to 
1920, 371-373  ;  organization, 409- 
469 ;  mayor-and-council  type, 
409-429 ;  commission-government 
type,  430-444 ;  city-manager 
type,  445-453 ;  administration 
under,  454-550;  finances,  533- 
550.  See  also  Cities;  Local  gov- 
ernment 

Municipal  ownership  and  operation, 
of  water  supply,  509;  of  public 
utilities,  520-521;  earnings  from, 
as  source  of  municipal  revenue,  541 

Municipal  Research,  545-546 

Mtmn  V.  Illinois,  191,  249  n. 

Munro,  W.  B.,  Initiative,  Referen- 
dum, and  Recall,  126  n. ;  Govern- 
ment of  the  United  States,  310  n. ; 
Government  of  American  Cities, 
313  n.,315-316, 345,348  n. , 351  n., 
352  n.,  354  n.,  355  n.,  362  n.,  363, 
374  n-,377  n.,378  n.,379  n.,382  n., 
38311-.  397  n-,  400  n.,  401  n., 
403  n.,  404  n.,  409  n.,  412  n., 
419  n.,  423  n.,  426  n.,  428  n., 
430  n.,  441  n.,  443  n.,  445  n., 
451,  454  n.,  456  n.,  457  n.,  459  n., 
461,  462  n.,  463  n.,  464;  Bibliog- 
raphy of  Municipal  Government, 
345  "v  374  n-,  43on.;  on  alien 
population,  350;  Principles  and 
Methods  of  Municipal  Adminis- 
tration, 416  n.,  427  n.,  471  n., 
475  n.,  479  n-,  49i  n.,  496  n., 
500  n.,  501  n.,  504  n.,  505  n., 
506  n.,  507  n.,  509  n.,  511  n., 
512  n.,  515  n.,  519  n.,  523  n., 
533  n.,  536  n.,  547  n.,  54Sn.; 
"Ten  Years  of  Commission  Gov- 
ernment," 432  n.,  442  n. 

Myers,  Gustavus,  History  of  Tam- 
many Hall,  56  n. 

Nation,  relation  of  the  states  to, 
7-17 


National  Bank  v.  Commonwealth, 
10,  229 

National  Conference  of  Charities 
and  Corrections,  Proceedings, 
17S  n.,   272  n. 

National  Municipal  League,  model 
state  constitution  advocated  by, 
200  n. 

National  Municipal  Review,  200  n., 
224  n.,  403  n.,  431  n.,  432  n., 
445". 

National  Short  Ballot  Association, 
96  n. 

National  Short  Ballot  Bulletins, 
445  n. 

Nationality  identical  among  the 
states,  6 

Nebraska,  vote  required  for 
amendment  of  constitution, 
32  n.;  amendment  of  constitu- 
tion by  referendum,  35 ;  resi- 
dence requirement  for  voting, 
41,  395;  nonpartisan  primaries 
adopted,  67 ;  signatures  required 
for  referendum  petition,  115; 
governor's  salary,  134 ;  governor's 
power  of  removal,  143 ;  admin- 
istrative reorganization,  166; 
county  superintendent  of  educa- 
tion, 172-173;  term  of  legisla- 
ture, 203 ;  debt,  235 ;  county  as- 
sessment of  property,  330  n.; 
special  statutes  relating  to  cities 
forbidden,  367 ;  municipal  home 
rule,  3S4-385,  447;  extension  of 
franchise  to  noncitizens,  394; 
choice  of  mayor  under  commis- 
sion government,  434 

Nebraska  Legislative  Reference  Bu- 
reau, "Legislative  Procedure  in 
the  Forty-eight  States,"  212  n. 

Nevada,  population,  4;  estimated 
wealth,  5 ;  signatures  required  for 
referendum  petitions,  115;  legis- 
lature may  not  immediately 
change  direct  legislation,  122;  re- 
call of  officers,  126;  recall  of 
judges,  283 ;  limitation  on  legis- 
lative action,  135;  lim-taion  in 
connection  with  the  budget.  234; 
granting  of  divorce  in,  262 

New  Bedford,  Massachusetts,  death 
rate  of  children,  351 

New  Hampshire,  adoption  of  early 
constitution,  19-20;  constitu- 
tional amendments,  31;  revision 
of    constitution,    33  n.;    suffrage 


570      STATE  AND  MUNICIPAL  GOVERNMENT 


qualification,  42 ;  pardoning 
power,  144;  powers  of  lieutenant 
governor,  150;  appointment  of 
attorney-general,  150;  appoint- 
ment of  district  attorneys,  152  n.; 
no  auditor  in,  153  n.;  size  of 
lower  house,  203 ;  salary  of  legis- 
lators, 206;  county  taxes,  321  n.; 
appointment  of  county  clerks, 
329;  no  commission-governed 
cities  in,  432 

New  Haven,  Connecticut,  keeps  its 
own  organization,  333-334 

New  Jersey,  density  of  population, 
4;  early  constitution  framed  by 
convention,  20;  no  amendment 
provision  in  early  constitution, 
20;  election  of  judges  in  early 
constitution,  21;  length  of  early 
constitution,  27  ;  no  provision  for 
constitutional  convention,  32 ; 
election  law,  89 ;  governor's  term, 
133 ;  governor's  salary,  134 ;  ap- 
pointment of  secretary  of  state, 
150;  appointment  of  attorney- 
general,  151;  appointment  of  au- 
ditor, 153  n.;  control  of  governor 
over  local  enforcement  of  law, 
169;  minimum-wage  law,  188; 
county  the  representative  district 
for  legislature,  201 ;  annual  ses- 
sions of  legislature,  203 ;  elections 
of  senators  and  representatives, 
203  ;  different  terms  of  represent- 
atives and  senators,  203 ;  debts 
235 ;  appointment  of  judges,  278, 
325  ;  county  board,  321 ;  appoint- 
ment of  county  treasurer,  330  n.; 
villages,  341 ;  special  statutes  for 
cities  forbidden,  370;  choice  of 
mayor  under  commission  govern- 
ment, 436 

New  Mexico,  has  no  direct  prima- 
ries, 68  n. ;  exclusion  of  appro- 
pirations  from  the  referendum, 
119;  governor's  term,  133; 
debt  restrictions,  235-236;  New 
Orleans,  early  quarantine  regu- 
lations, 182 ;  city  and  county 
boundaries  coincide,  318;  area, 
346 ;  commission  government, 
432;  salary  of  commissioners, 
434;  small  cost  of  police,  479; 
small  cost  of  fire  deiiartnient, 
484;  board  of  health  established, 
485  ;  water  softened,  507  ;  source 
of    water   supply,    508;    garbage 


disposal,  513;  poor  relief,  529; 
revenue  from  public-service  en- 
terprises, 534  n. 

New  York  Bureau  of  Municipal 
Research,  163  n. 

New  York  City,  organization  of 
Tammany  Hall,  57-58;  disclos- 
ures of  Lexow  Committee  as  to 
campaign  funds,  85 ;  early  board 
of  health,  182,  485;  discriminated 
against  in  state  senatorial  appor- 
tionment, 203-204;  borough  char- 
ter, 313;  contains  bulk  of  county 
population,  318;  area,  346;  pop- 
ulation more  commercial  than 
industrial,  346;  death  rate,  354; 
ownership  of  homes,  357;  a  close 
corporation,  360;  colonial  sheriff, 
361;  expenditures  in  iSio,  364; 
charter  of  1830,  365 ;  Croton 
Aqueduct,  365 ;  police  and  fire 
department  in  1845,  366-367; 
executive  departments  in  1849, 
367-368;  board  of  estimate  and 
apportionment,  371 ;  special  legis- 
lation, 379;  may  not  adopt  op- 
tional charter,  382 ;  municipal 
parties,  405 ;  board  of  aldermen, 
411;  election  of  president  of 
board  of  aldermen,  414;  inde- 
pendence of  mayor,  420 ;  mayor's 
term,  421 ;  mayor's  salary,  423  n.; 
number  of  administrative  depart- 
ments, 457;  duties  of  police,  471- 
472;  development  of  police,  474; 
state  control  over  police,  475 ; 
removal  of  police,  478;  cost  of 
police  department,  478;  fire  loss, 
479 ;  reason  for,  480 ;  organ- 
ized fire  department,  482 ;  fire 
commissioner,  4S2 ;  cost  of  fire 
department,  484;  control  over 
infectious  diseases,  488 ;  land 
value  of  streets,  496;  street- 
cleaning  a  separate  department, 
497;  cost  of  streets,  499;  source 
of  water  supply,  507 ;  organiza- 
tion of  water  department,  509; 
public-utility  commission,  519; 
construction  of  subways,  520; 
cost  of  schools,  528;  budget- 
making,  544,  546-547 

New  ^'()rk  Constitutional  Conven- 
tion, Index  Digest  of  State 
Constitutions,  42  n.,  118  n., 
ii9n.,  163  n.,  397  n.;  Proceed- 
ings, 163  n. 


INDEX 


571 


New  York  County,  Democratic 
party  organization  in,  56-58; 
population,  318;  former  fees  of 
sheriff,   327 

New  York  State,  population,  4; 
density  of  population,  4;  per- 
centage of  foreign-born,  4;  esti- 
mated wealth,  5;  framing  and 
amendment  of  early  constitu- 
tion, 20;  term  of  governor  under 
early  constitution,  20;  appoint- 
ment of  judges  under  early 
constitution,  21;  separation  of 
powers  in  early  constitution, 
24-25;  periodic  submission  of 
question  of  constitutional  re- 
vision, 33 ;  disqualification  for 
suffrage,  44  n.;  registration  for 
suffrage,  45 ;  state  party  com- 
mittee, 48;  registration  in  pri- 
maries, 62  ;  registration  in  parties, 
64;  return  to  convention  system 
of  nominations,  76  n.;  campaign 
expenses  for  printed  appeals  to 
voters,  82 ;  contributions  from 
candidates  for  judicial  office,  84 ; 
attempt  to  control  election  ex- 
penses, 86;  definition  of  cam- 
paign expenses,  89;  governor's 
term,  133  ;  governor's  salary,  134; 
impeachment  of  governor,  135  n.; 
veto  power  of  governor,  137; 
power  of  governor  over  local  of- 
ficials, 143;  auditor,  153;  organi- 
zation of  board  of  regents,  150; 
organization  of  board  of  health, 
160;  movement  toward  adminis- 
trative reorganization,  163-164; 
results  of  administrative  reor- 
ganization, 166-167 ;  removal  of 
county  officers  l3y  governor, 
i6gn.;  state  constabulary,  171; 
appointment  and  powers  of  board 
of  education,  173-174;  state  li- 
brary, 176;  department  of  char- 
ity, 170;  professional  qualifica- 
tions required  of  board  of  health, 
182  ;  importance  of  health  com- 
missioner, 183;  constitutionality 
of  workmen's  compensation  laws, 
186-187;  attempt  to  pass  health- 
insurance  bill,  187;  discrimina- 
tion against  New  York  City  in 
senatorial  apportionment,  202- 
203 ;  size  of  senate,  203 ;  annual 
sessions  and  term  of  legislature, 
203 ;  salaries  of  legislators,  206 ; 


committee  system  in  legislature, 
212-213;  rate  of  legislation,  217- 
218;  legislative  type  of  budget, 
233;  debt,  235;  no  distinction 
between  legal  and  equitable 
remedies,  245-246;  granting  of 
divorce  in,  262 ;  juvenile  court, 
272  ;  term  of  judges,  281 ;  county 
board,  early,  312-313;  county 
board,  present,  321;  removal  of 
sheriffs  by  governor,  328;  town 
meeting  and  officers,  338;  vil- 
lages, 341 ;  mayors  chosen  by  city 
councils  in  law  of  1821,  364;  re- 
moval power  of  mayors,  370; 
optional-charter  system,  372,  382, 
432-433;  special  legislation  for 
cities,  379;  regulation  of  legisla- 
tion for  cities,  382-383  ;  removal 
of  mayors  by  governor,  422; 
budget  plan,  427;  civil-service 
system  for  cities,  467 ;  training 
school  for  firemen,  482 ;  health 
commissioner,  486 

Nolen,  John,  City  Planning,  491  n. 

Nolle  prosequi,  power  of,  290 

Nomination,  share  of  state  party 
committee  in,  49;  by  state  con- 
vention, 53 ;  by  primaries,  63 ; 
by  direct  primaries,  66;  in  Great 
Britain  compared  with  the  United 
States,  86;  in  cities,  398-401;  in 
commission  government,  434 ;  in 
city-manager  plan,  447 

Norfolk,  Virginia,  chartered  as 
borough,  313  n.;  adopts  city- 
manager,  plan,  446 

Norristown,  Pennsylvania,  cost  of 
schools,  529 ;  revenue  from  poll 
tax,  534 

North  Carolina,  foreign-born  in,  4; 
framing  and  amendment  of  early 
constitution,  20 ;  election  of 
judges  under  early  constitution, 
2 1 ;  suffrage  conditioned  on  resi- 
dence, 41,  395;  suffrage  condi- 
tioned on  literacy,  42 ;  effect  of 
suffrage  qualifications,  44 ;  has  no 
direct  primaries,  68  n.;  no  execu- 
tive veto,  136;  powers  of  lieu- 
tenant governor,  150;  adminis- 
trative consolidation,  165 ;  term 
of  legislature,  203 ;  divorce  not 
legal  in,  262 ;  local  assessors, 
330  n.,  townships,  340;  payment 
of  poll  tax,  397 ;  optional  charter 
system,  382,  432-433 


572      STATE  AND  MUNICIPAL  GOVERNMENT 


North  Dakota,  amendment  of  con- 
stitution by  constitutional  con- 
vention, 32  ;  amendment  of  con- 
stitution by  referendum,  35 ; 
publicity  pamphlets,  80  n. ;  regu- 
lations regarding  signers  of  initia- 
tive and  referendum  petitions, 
115;  minimum-wage  law,  188  n.; 
township  boards,  33S;  villages, 
341 ;  renewal  of  city  commission- 
ers, 434 

Nuisances,  common  law  of,  as  basis 
for  sanitary  police  powers,  485- 
486 

Oberholtzer,  E.  P.,  Initiative,  Ref- 
erendum, and  Recall  in  America, 
105  n. 

Ohio,  vote  required  for  amending 
constitution,  32;  question  of  re- 
vision of  constitution,  33 ;  amend- 
ment of  constitution  by  ref- 
erendum, 35 ;  nonpartisan 
primaries  adopted,  67 ;  signa- 
tures required  for  initiative  pe- 
tition, lis;  special  ballots  for 
referenda,  120;  governor's  term, 
133  ;  governor's  salary,  134 ;  audi- 
tor, 153;  administrative  reorgan- 
ization, 166;  county  the  repre- 
sentative district,  201 ;  senatorial 
districts,  201 ;  no  distinction  be- 
tween legal  and  equitable  reme- 
dies, 245-246;  small-claims  court, 
274  n.;  early  local  government, 
314;  former  fees  of  sheriffs,  327; 
auditor's  fees  in  Cuyahoga 
County,  331;  township  meetings 
and  boards,  338;  villages,  341; 
special  statutes  relating  to  cities 
forbidden,  367,  381,  383  ;  optional 
charter  law,  381,  432-433;  mu- 
nicipal home  rule,  384-385,  447; 
referendum  on  special  laws  for 
cities,  407 ;  commission  govern- 
ment adopted,  407  n.;  city-man- 
ager plan  may  be  adopted  under 
home   rule,  447 

Oklahoma,  length  of  constitution, 
27;  modern  aspects  of  constitu- 
tion, 20;  provisions  in  constitu- 
tion regarrling  corporations,  30; 
vote  required  for  amendment  of 
constitution  by  legislature,  32 ; 
question  of  revision  of  constitu- 
tion, 33;  amendment  of  consti- 
tution  by   referendum,  35;   suf- 


frage qualification  as  to  literacy, 
42,  43  ;  legislature  may  change  di- 
rect legislation,  122;  appointment 
of  agents  to  enforce  special  laws, 
169  n. ;  powers  of  board  of  health, 
173;  health  commissioner,  183; 
municipal    home    rule,    384-385, 

447 
Optional  charter  system,  382,  383; 
adoption  of  commission  govern- 
ment   by    means    of,    432-433; 
adoption    of    city-manager   plan, 

447 

Ordinances,  power  of  city  council 
to  pass,  415-418 

Oregon,  amendment  of  constitution 
by  referendum,  35 ;  proposed  re- 
vision of  constitution,  36;  resi- 
dence requirement  for  voting,  41, 
395 ;  effect  of  suffrage  qualifica- 
tions, 44 ;  publicity  pamphlet,  80 ; 
regulation  of  campaign  expenses, 
87,  88;  long  ballot  used,  96-98; 
experiments  in  proportional  repre- 
sentation, 102 ;  constitutional  ini- 
tiative, no;  recall  petitions,  126; 
secretary  of  state  as  auditor, 
153  n.;  power  of  governor  over 
law  enforcement,  169 ;  compensa- 
tion of  legislators,  206;  small- 
claims  court,  274  n.;  recall  of 
judges, 2S3  ;  jurisdiction  of  county 
courts,  326;  county  districts, 
341 ;  municipal  home  rule,  384- 

3S5,  447 

Orth,  Samuel  P.,  "Our  State  Legis- 
latures," 207  n.,  217 

Ostrogorski,  M.,  Democracy  and 
the  Party  System  in  the  United 
States,  77  n. 

Pardon,  governor's  power  of,  144; 
and  parole,  boards  of,  181-182 

Parish,  as  administrative  unit  in 
England,  310;  in  the  Southern 
colonies,  31 1-3 12 

Parsons,  Herbert,  "Why  a  Political 
Party  Needs  Money,"  62 

Partnerships  and  corporations,  def- 
initions of,  262-265.  See  also 
Corporations 

Party,  political,  definition,  46-47; 
functions,  47 ;  organization,  47- 
60;  state  committees,  47-50; 
local  committees,  50-51;  state 
conventions,  51-55;  the  ma- 
chine,  56-00;   primaries,  61-76; 


INDEX 


573 


tests  of  membership,  64,  66- 
67;  platforms,  74;  campaigns, 
77-Qi;  funds,  sources  of,  83-85; 
and  proportional  representation, 
103-104 ;  effect  of  initiative  and 
referendum  on,  124;  influence  on 
state  legislation,  213-214,  220- 
222;  influence  on  election  of 
judges,  279,  280;  influence  of  na- 
tional and  state,  in  cities,  364, 
366,  368,  369,  404:  in  cities  under 
home  rule,  387-388;  in  city  elec- 
tions, 398-403 ;  municipal,  403- 
406;  abolition  of,  in  city  elec- 
tions, 404-405 ;  fusion  in  city 
elections,  406 ;  influence  on 
municipal  administration,  464- 
466 

Pasadena,  California,  sewage  farm, 
516;  revenue  from  public-service 
enterprises,  534  n. 

Passaic,  New  Jersey,  foreign-born 
population,  349 

Patrolmen  in  the  police  force,  477- 
478 

Patronage,  use  of,  in  machine  pol- 
itics,   59-60,   46s 

Pavements,  street,  502-504 

Pennsylvania,  estimated  wealth,  5 ; 
early  constitution  framed  by  con- 
vention, 20 ;  no  amendment  of 
early  constitution,  20;  single- 
chambered  legislature  provided 
in  early  constitution,  21;  ap- 
pointment of  judges  in  early  con- 
stitution, 21;  provision  for  con- 
stitutional convention,  32 ;  Dec- 
laration of  Rights,  39;  suffrage 
conditioned  on  property.  42  ;  dis- 
trict for  state  party  committee, 
48 ;  annual  registration  in  prima- 
ries, 61-62;  nonpartisan  pri- 
mary adopted,  67;  campaign 
methods,  79 ;  type  of  ballot  used, 
93  ;  governor's  term,  133  ;  gover- 
nor's salary,  134;  governor's  use 
of  veto,  138;  governor's  power 
of  removal,  143 ;  appointment  of 
secretary  of  state,  150;  appoint- 
ment of  attorney-general,  151; 
organization  of  department  of 
labor,  160;  state  constabulary, 
171;  health  commissioner,  183; 
salary  of  legislators,  206;  busi- 
ness taxes,  229;  term  of  judges. 
2S1 ;  jurisdiction  of  county 
courts,  325;  township  boards  and 


meetings,  338;  villages,  341;  spe- 
cial statutes  relating  to  cities  for- 
bidden,  370;  municipal  home 
rule,  384  n.;  suffrage  conditioned 
on  residence,  395 ;  suffrage  con- 
ditioned on  payment  of  taxes, 
397  ;  commission  government  for 
cities,  432;  power  of  mayor 
under  commission  government, 
437;  election  of  fiscal  officers 
under  commission  government, 
438;  centralized  bureau  for  fire 
protection,  480 ;  taxation  of  in- 
tangible property,  538 ;  municipal 
debt   limit,   549 

Pensions  for  municipal  employees, 
468-469 

Petition,  use  of,  in  direct  legislation, 
109-117,  438-439;  signatures, 
111-116;  substitution  of  fee  for, 
114;  in  the  recall,  126-127,  439; 
nomination  by,  399-401,  434, 
447 ;  use  of,  in  adopting  com- 
mission government  by  general 
or  optional-charter  laws,  443 

Philadelphia,  Pennsylvania,  early 
establishment  of  board  of  health, 
182,  485;  chartered  as  borough, 
313  n.;  city  and  county  bound- 
aries coincide,  318;  industrial 
population,  346;  area,  346; 
aliens,  350;  a  close  corporation, 
360 ;  fines  levied  in  colonial  bor- 
ough for  failure  to  accept  office, 
361;  salary  of  city  council,  412; 
term  and  reeligibility  of  mayor, 
421;  mayor's  salary,  423;  need 
not  adopt  commission  govern- 
ment, 432  ;  control  of  city  council 
443 ;  number  of  administrative 
departments,  457;  appointment 
of  board  of  education,  458-459  n., 
523;  civil  service,  467;  organiza- 
tion of  police  force,  474 ;  training 
school  for  policemen,  478 ;  train- 
ing school  for  firemen,  4S2 ;  or- 
ganization of  fire  department, 
482 ;  cost  of  fire  department, 
484 ;  source  of  water  supply,  508 ; 
purification  of  water  supply,  508 ; 
debt  for  sewerage,  517 

Phillips,  J.  B.,  "Educational  Quali- 
fications  of  Voters,"   42  n. 

Pittsburgh,  Pennsylvania,  growth 
from  settlement  around  fort,  345  ; 
not  required  to  adopt  commis- 
sion   government,    432 ;    cost   of 


574      STATE  AND  MUNICIPAL  GOVERNMENT 


fire  department,  484;  cost  of 
public-health  work,  4Q0 ;  cost  of 
streets,  499 ;  purification  of  water 
in,  508 

Platform,  party,  52-53 

Piatt,  Thomas  C,  Autobiography, 
222  n. 

Pleadings   in   civil   cases,    295-296, 

2Q7 

Pocket  veto  in  states,  137  n. 

Police,  municipal,  in  period  from 
1820  to  1850,  365 ;  in  period 
from  1850  to  1870,  366-367; 
proper  control  of  state  over, 
389;  definition  of  term,  470; 
functions  and  duties,  470-472 ; 
European  and  American  concep- 
tions of,  472-473;  difficulties  of 
administration  in  United  States, 
473-474;  development,  474-475; 
state  versus  local  control,  475- 
476;  chief  of,  476-477;  organi- 
zation of  department,  476-478 ; 
schools  for,  478;  cost,  478-479 

Police,  state,  171 

Police  commissioner,  476 

Police  power,  of  the  states,  10,  15- 
16;  a  limitation  on  private  prop- 
erty, 249 ;  interference  of  Federal 
courts  under  Fourteenth  Amend- 
ment, 276-277;  exercise  by  coun- 
ties, 324;  exercise  by  city  coun- 
cil, 416;  meaning  of,  and  con- 
nection with  the  administrative 
police,  470;  in  relation  to  sani- 
tation, 485-486 

Poll  taxes  in  connection  with  vot- 
ing, 3Q7 

Poor  relief.  See  Charities  and  Cor- 
rections 

Population,  of  the  states,  variations 
in,  4-5;  of  counties,  318;  of 
towns,  333-334;  of  cities,  347- 
348;  growth  of,  364,  369-370, 
371-372 

Porter,  M.  P.,  "Preferential  Voting 
and  the  Rule  of  the  Majority," 
loi  n. 

Portland,  Oregon,  commission  gov- 
ernment in,  432,  433;  assignment 
of  departments  under  commission 
government,  435 ;  election  of  fis- 
cal officers  under  commission 
government,  438 

Portsmouth,  Virginia,  school  ex- 
penditures, 528 

Posse  comitalus,  327-328 


Preferential  voting,  required  for 
party  elections  in  Idaho  and 
Wisconsin,  73;  theory  of,  loi- 
102 ;  use  in  municipal  elections, 
402 

Primary,  in  general,  61-76;  regis- 
tration, 61-62;  definition,  62- 
63 ;  functions  and  organization, 
63 ;  nomination  of  candidates  by, 
63  n.;  procedure,  64;  party  tests, 
64 ;  merits  and  faults,  65 ;  pur- 
pose of  direct,  65-66;  procedure 
of  direct,  66 ;  open  and  closed, 
66-67,  3QS;  nonpartisan,  67-68, 
398-399,  434,  447,  465;  merits 
and  faults  of  direct,  68-76;  in 
South  Dakota,  75 ;  conclusions 
regarding,  76 ;  nomination  in 
cities,  398-399 

Privileges  and  immunities  of  citi- 
zens of  the  United  States,  12-13 

Procedure,  legislative,  217-221;  ju- 
dicial, 291-298 

Prohibitions,  on  federal  govern- 
ment, 8-9;  on  states,  9-13 

Promotion,  of  municipal  employees, 
468;  of  teachers,  525-526 

Property,  meaning  in  Fourteenth 
Amendment  as  interpreted  by  the 
courts,  12;  holding  of,  as  qualifi- 
cation for  voting,  42 ;  taxation, 
225-229,  535-540;  ownership, 
248-249;  right  of,  248-251;  emi- 
nent domain,  249;  real  and  per- 
sonal, 250-251;  ownership  of,  in 
cities,  357;  qualifications  for  vot- 
ing in  cities,  304,  396-397;  as 
qualification  for  mayor,  422  ;  dif- 
ficulties encountered  by  city 
planning  in  taking  private,  494; 
restrictions  on,  by  zoning  ordi- 
nances, 501;  assessment  of,  for 
taxation,      535-536;      valuation, 

536-537 
Proportional    representation,    102- 

104,  402-403,  451 
Protest,  the,  in  Dcs  Moines  plan  of 

commission  government,  430 
Providence,  Rhode  Island,  garbage 

disposal  in,  513 
Public  health,  state  administration 

of,  182-185;  early  attempts,  182; 

state    board,     182-183;     powers 

and    duties    of    state    board    of, 

183,   184;  executive  officer,  183; 

training   of   officers   for,    183  n.; 

relation  between  state  and  local 


INDEX 


575 


authorities,  184-185,  389;  regu- 
lation of  industries  for,  185- 
187 ;  municipal  department  of, 
485-490;  organization  of  munic- 
ipal department  of,  4S6;  rela- 
tion of  municipal  department  of, 
to  other  departments,  486-487 ; 
functions  of  municipal  depart- 
ment of,  487-490;  hospitals,  530 
Public-service     commissions,     191- 

193,  519 

Public-service  enterprises,  taxation 
of,  228-229,  539-540;  franchises 
of,  518-520;  types,  520;  munic- 
ipal operation,  521;  earnings  as 
source  of  municipal  revenue,  541 

Public  utilities,  state  regulation  of, 
191-192;  definition,  517-518;  in 
cities,  517-521;  granting  of 
franchises,  518;  duration  of 
franchises,  518-519;  regulation 
of  rates  in  franchise,  519-520; 
reversion  of  plant,  520;  types, 
520;  municipal  versus  private 
operation,  521;  earnings  from 
municipal  operation  of,  541 

Public  works,  administration  of,  by 
the  state,  193  ;  administration  of, 
by  the  county,  324 

Publicity  pamphlet,  80 

Purification,  of  water  supply,  508- 
509;  of  sewage,  515-516 

Qualifications,  for  suffrage,  40-47 ; 
for  mayor,  422-423 

Quasi-corporation,  the  county  as, 
317,  318-319;  the  New  England 
town  as,  333 ;  the  township  as, 
337;  Southern  and  Western 
county  districts  not,  339 

Qito  warranto,  writ  of,  for  infor- 
mation,  266 

Railroads,  state  regulation  of,  192 
Rallies  as  a  campaign  method,  80- 

81 
Rates,   for   supply   of   water,   511; 
regulation    of,    in    public-utility 
franchises,  519-520;  of  taxation, 

541 

Ray,  P.  O.,  Political  Parties  and 
Practical  Politics,  54  n.,  56  n.,  62, 
77  n.,  79  n.,  92  n.;  in  American 
Political  Science  Revieii\  99  n. 

Recall,  of  judicial  decisions,  26, 
283-284;  of  officers,  definition, 
126;     how     invoked,     126-127; 


operation,  127;  advisory,  127; 
frequency  of  use,  128;  of  the 
governor,  133 ;  of  judges,  283  ;  in 
cities,  408;  in  commission  gov- 
ernment, 439-440 

Recorder  in  colonial  boroughs,  361 

Reduction  of  garbage,  513 

Referendum,  definition,  106,  116; 
constitutional,  106-107 ;  statu- 
tory, 107  ;  compulsory  or  op- 
tional, 107-108,  223  ;  petition  for, 
117;  limitations  on,  11 7-1 19; 
submission  to  voters,  119-122; 
majority  required,  121-122;  veto 
by  governor  and  change  or  re- 
peal by  legislature,  122;  effect 
on  electorate,  123-124;  effect  on 
parties,  124;  effect  on  the  ma- 
chine, 124-125 ;  effect  on  the  bal- 
lot, 125;  effect  on  legislation, 
223-224;  of  charter  amendments 
in  cities  of  Illinois  and  Ohio, 
383 ;  in  cities,  406-408 ;  in  con- 
nection with  franchises,  417;  in 
connection  with  commission 
government,  439;  on  ordinances 
under  city-manager  plan,  448 

Reform,  in  state  administrative  sys- 
tem, 163-167;  in  municipal  ad- 
ministration, 372 

Refuse,  disposal  of,  in  cities,5i2-5i3 

Registrar  of  deeds,  331 

Registration  for  voting,  effect  of 
requirement,  45,  397 ;  in  the 
primaries,  61-62;  in  parties,  64; 
required  by  election  laws,  91;  by 
mail,  100 

Reinsch,  P.  S.,  American  Legisla- 
tures and  Legislative  Methods, 
45  n.,  155  n.,  197  n.,  200  n.,  202  n., 
203  n.,  210  n.,  217  n.,  218  n., 
221  n.,  222;  Readings  on  Amer- 
ican State  Government,  200  n., 
207  n.,  216  n.;  English  Common 
Law  in  Early  American  Colonies, 

243 

Removal,  of  governor,  133-134;  of 
local  law-enforcing  officers  by 
governor,  169;  of  sheriff  by  gov- 
ernor, 169,  328;  of  judges,  282- 
283;  power  of  mayor  in,  370, 
428-429;  of  mayor  by  governor 
in  some  New  York  cities,  422; 
of  municipal  administrative  offi- 
cers, 461 

Reserved  powers  in  Federal  Consti- 
tution, 14-16 


576      STATE  AND  MUNICIPAL  GOVERNMENT 


Residence,  as  qualification  for  vot- 
ing, 41,  395-396;  meaning  of, 
395 ;  as  qualification  for  mayor, 
422 

Resources,  natural,  of  the  states,  5 

Revenue,  of  the  states,  sources, 
225;  taxation  for,  225-230;  table, 
226;  collected  by  counties,  319; 
of  cities,  534-542 

Review  of  RevieTi's,  54  n. 

Revision,  of  state  constitutions,  dif- 
ferent from  amendment,  31 ;  pro- 
visions for,  32-36;  by  conven- 
tions, 32-35 ;  by  direct  legisla- 
tion, 35 

Rhode  Island,  area  and  population, 
4 ;  early  constitution,  19 ;  pro- 
vision for  constitutional  conven- 
tion, 32;  voting  conditioned  on 
residence,  41,  395;  party  rules 
for  admission  to  primaries,  64 ; 
no  direct  primary,  6Sn.;  pro- 
vincial governor  and  council, 
132;  use  of  veto,  138;  appoint- 
ment of  board  of  education,  173; 
department  of  charity,  179;  an- 
nual sessions  of  legislature,  203 ; 
appointment  of  higher  judges, 
278  n.;  area  of  Bristol  County, 
318;  election  of  county  judges, 
325;  no  county  treasurer,  330; 
town  council,  335  n.;  duties  of 
town  clerks,  336;  school  districts 
of  towns,  336;  voting  in  cities 
conditioned  on  property,  396; 
voting  conditioned  on  payment 
of  poll  tax,  397 ;  no  commission- 
governed  cities,  432 

Richards'  Law  in  South  Dakota,  75 

Richmond,  Virginia,  borough  char- 
ter, 313  n.;  poor  relief,  529 

Rights,  protected  against  states  by 
Federal  Constitution,  11-13; 
guaranteed  in  state  constitutions, 
22-23,  28-29;  legal,  246-247; 
fundamental,    247-251 

Rochester,  New  York,  may  not 
adopt  optional  charter,  382 ; 
county  care  of  poor  relief,  529 

Roosevelt,  Theodore,  doctrine  as  to 
recall  of  judicial  decisions,  26; 
governor  of  New  York,  146 

Root,  Elihu,  chairman  of  New 
York  Constitutional  Convention, 

163 
Rose,  J.  C,"  Negro  Suffrage,"  43  n., 
44  n. 


Rosenau,  M.  J.,  Preventive  Medi- 
cine and  Hygiene,  48S  n. 
Rubbish,  disposal  of,  in  cities,  512 
Rule  of  law,  meaning,  23 ;  in  state 
constitutions,  25-26 

St.  Louis,  state  control  of  police 
force,  169,  475 ;  city  and  county 
boundaries  coincide,  3 iS;  popular 
election  of  mayor  by  charter  of 
1822,  364;  board  of  freeholders, 
385;  mayor's  term,  421;  resi- 
dence requirement  for  mayor, 
422;  number  of  administrative 
departments,  457;  softening  of 
water  supply,  507 ;  source  of 
water  supply,  508 

St.  Paul,  has  commission  govern- 
ment, 432;  assignment  of  depart- 
ments, 435;  veto  of  mayor,  437; 
election  of  fiscal  officers,  438 

Salary,  of  governor,  134;  of  state 
legislatures,  204-205,  206;  of 
sheriffs,  327;  of  city  councilors, 
412;  of  mayors,  423-424;  of 
commissioners  in  commission 
government,  434-435 ;  of  mayors 
in  commission  government,  436 ; 
of  commissioners  and  mayor  in 
Dayton  city-manager  plan,  448; 
of  city  manager  in  Dayton,  448 ; 
of  municipal  administrative  of- 
ficers, 461 ;  of  school-teachers, 
526-527;  of  overseers  of  the 
poor,  530 

Salt   Lake   City,   sewage   farm   in, 

S16 

San  Antonio,  Texas,  source  of  water 
supply,  507 

Sanderson,  J.  F.    See  Finley,  J.  H. 

San  Diego,  California,  election  of 
fiscal  officers  under  commission 
government,  438 

San  Francisco,  city  and  county 
boundaries  coincide,  318;  size  of 
council,  411;  residence  require- 
ment for  mayor,  422;  mayor's 
salary,  423 ;  necessary  vote  to 
override  mayor's  veto,  425;  fire 
board,  482 ;  high  cost  of  fire 
department,  484;  appointment  of 
school  board,  523 

Sanitation,  municipal,  supply  of 
water,  505-511;  waste  disposal, 
511-513;  sewage,  513-517 

San  Jose,  California,  revenue  from 
miscellaneous  sources,  535  n. 


INDEX 


577 


Savannah,    negro     population     in, 
349  n.;    commission    government 
rejected,  432 
Sciinader,    W.    A.,    "Proper    Safe- 
guards   for    the    Initiative    and 
Referendum  Petition,"  ioq  n. 
Schools,  in  cities,  increased  demand 
for,  373;  police,  478;  for  train- 
ing firemen,  482;   evening,   527; 
vocational,    527-528;    for   defec- 
tives, 528;  open-air,  528;  as  aids 
to    public    health    and    to    good 
citizenship,  52S.     See  also  Edu- 
cation 
Scranton,    Pennsylvania,    not    re- 
quired   by    state   law    to    adopt 
commission  government,  432 
Screening,  sewage  treatment  by,  515 
Secretary  of  state,  150-151 
Securities,  state  supervision  of,  iqi 
Sedimentation,    sewage     treatment 

by,  515 

Selectmen,  335 

Separation  of  powers,  in  state  con- 
stitutions, 24-26;  in  municipal 
government,  363-364;  abandoned 
by  commission  form  of  govern- 
ment, 430 

Septic  tanks,  purification  of  sewage 

by,  515 

Serial  bonds,  237,  550 

Sessions  of  state  legislatures,  203, 
206;  table,  204-205 

Sewage,  in  cities,  373,  513-S.17; 
disposal,  513-515;  purification, 
515-516;  organization  of  de- 
partment for,  516-517;  finances, 

517 

Sewage  farms,  516 

Sewer  department,  work,  516;  ex- 
penditures,  517 

Sex,  as  qualification  for  voting,  40- 
41,  395;  population  in  cities  ac- 
cording to,  351-352 

Sheriff,  removal  by  governor,  169, 
328;  as  judicial  officer,  284-2S5; 
execution  of  court  judgments, 
297;  in  counties,  327-329;  in 
colonial  boroughs,  361 

Short  ballot,  05-99  \  in  municipal 
elections,  402 

Shreveport,  Louisiana,  small  school 
expenditures  in,  528-529 

Shreveport  case,  192 

Shultz,  B.  E.    See  Beard,  C.  A. 

Sidewalks,  504-505 

Sinking  funds,  236-237,  550 


Slaughter  House  Cases,  12-13 

Sliding  scale  for  rates  in  public 
utilities,  519-520 

Smith,  R.  H.,  "Justice  and  the 
Poor,"  272  n.,  274  n. 

Snedden,  David.    See  Button,  S.  T. 

South  V.  Maryland,  327 

South  Bend,  Indiana,  revenue  from 
special  assessments,  534  n. 

South  Carolina,  negro  population, 
5;  early  constitution,  20;  suffrage 
conditioned  on  residence,  41,  395  ; 
suffrage  conditioned  on  literacy, 
42 ;  effect  of  suffrage  qualifica- 
tions, 44;  direct  primary,  68  n.; 
item-veto,  138  n.;  appointment 
of  agents  to  enforce  special  laws, 
169  n.;  legislature,  annual  ses- 
sion, 203 ;  salary  of  legislators, 
206 ;  no  distinction  between  legal 
and  equitable  remedies,  245-246; 
appointment  of  higher  judges, 
278  n.;  election  of  county  judges, 
325;  local  assessors,  330  n.;  ap- 
pointment of  county  treasurer, 
330  n.;  townships,  340  n.;  suf- 
frage conditioned  on  payment  of 
taxes,  397  n. ;  assignment  of  de- 
partments under  commission  gov- 
ernment, 435 

South  Dakota,  Richards'  primary 
law,  75 ;  publicity  pamphlets. 
Son.;  signatures  required  on  ini- 
tiative petition,  114-115;  emer- 
gency legislation,  117-118;  effect 
of  initiative  and  referendum  in, 
124;  term  of  legislature,  203; 
county  assessment  of  property, 
330  n.;  township  boards,  338; 
villages,  341;  extension  of  fran- 
chise to  noncitizens,  394;  resi- 
dence requirement  for  voting, 
395 ;  renewal  of  city  commis- 
sioners, 434 

Sovereignty,  popular,  in  state  con- 
stitutions, 21-23;  in  relation  to 
judicial  review,  25-26;  in  regard 
to  amending  constitutions,  30; 
and  the  electorate,  39 ;  in  law- 
making, 240 ;  courts  as  agents  of 
self-government,  304-305 

Sovereignty   of   states,  8 

Speaker  of  state  house  of  repre- 
sentatives, 207-209 ;  powers  of, 
208-209 ;  appoints  committees, 
209 

Special  assessments,  504,  540 


578      STATE  AND  MUNICIPAL  G0VERN:\IENT 


Special  legislation,  limited  by  state 
constitutions,  197-198;  for  cities, 
367,  370,  372,  378-383;  as  means 
of  adopting  commission  govern- 
ment,   433 ;    city-manager    plan, 

447 
Spoils   system   in    cities,   364,   366, 

369,  371-  466 

Spokane,  Washington,  commission 
government  adopted  under  home- 
rule  law,  433 

State  V.  Jones,  381 

State  ex  rel.  v.  Olcott,  122  n. 

State  Tonnage  Tax  Cases,  10 

States,  nature  of  the,  3-17;  political 
importance,  3-4 ;  variations  in 
area  and  population,  4-5 ;  vari- 
ations in  climate  and  resources, 
5 ;  simUarities,  5-6 ;  one  nation- 
ality, 6;  and  the  nation,  7-17; 
as  bodies  politic,  7-8 ;  not  sov- 
ereign, 8;  prohibitions  upon,  in 
Federal  Constitution,  9-17;  obli- 
gations imposed  on,  13 ;  limita- 
tions on,  through  powers  dele- 
gated to  federal  government,  14; 
reserved  powers,  14-16;  consti- 
tutions, 18-36;  political  system, 
39-128;  organization  and  func- 
tions, 131-305;  governor,  131- 
148;  administration,  149-193; 
legislature,  194-224;  finance,  225- 
237;  legal  system,  238-267;  ju- 
dicial system,  268-305 ;  legal  po- 
sition of  city  in,  375;  attitude  of 
legislature  of,  toward  city,  378; 
special  legislation  for  cities,  379- 
380 ;  limitations  of  power  over 
cities.  380-381 ;  restricted  by  pro- 
hibition of  special  legislation, 
381;  regulation  of  special  legis- 
lation, 382-383 ;  optional  city 
charters,  382 ;  municipal  home 
rule,  383-388;  proper  control 
over  cities,  388-392 ;  methods  of 
exercising  control  over  cities, 
390-302 ;  power  of,  over  city 
administration,  458,  459-460; 
power  of,  over  municipal  police, 
475-476 

Statistics,  of  delegates  to  a  party 
convention,  54  n.;  of  expense?  of 
state  government,  230;  of  state 
debts,  235 ;  of  increases  in  popu- 
lation, 347-348 ;  of  aliens  in  cities, 
340;  of  sex  in  cities,  351;  of 
death    rate    in    cities,    354;    of 


literacy  in  cities,  356;  of  growth 
of  cities,  364,  369-370,  371-372; 
of  city-manager-plan  citl,;s,  451- 
452 ;  of  cost  of  police  depart- 
ments, 478-479;  of  fire  losses, 
479;  of  cost  of  fire  departments, 
4S4;  of  cost  of  public  health, 
489-490;  of  cost  of  streets,  499- 
500;  of  cost  of  water  supplies, 
510;  of  sewage  and  sewerage 
finance.  517;  of  school  finance, 
528-529;  of  municipal  expendi- 
tures, 533,  542-543  ;  of  sources  of 
municipal  revenue,  534 ;  of  mu- 
nicipal debts,  548-549 

Staunton,  Virginia,  city  manager 
first  adopted,  446 

Stimson,  F.  J.,  American  Constitu- 
tion, Federal  and  State  Consti- 
tutions. 8 

Stockton,  California,  revenue  from 
special  assessments,  534 

Story,  R.  M.,  The  American  Mu- 
nicipal Executive,  419  n.,  435  n., 
437  n-,  448  n. 

Streets,  maintenance  of,  in  cities, 
370,  373;  importance,  496-497; 
department,  organization  and 
functions,  497 ;  acquisition  of 
land  for,  498-499 ;  cost,  499- 
500 ;  classification,  500 ;  special 
problems.  500-502 ;  methods  of 
construction  and  pavements,  502- 
504;  sidewalks,  504-505 

Subpccna,  writ  of,  297 

Suffrage,  in  the  states,  restrictions 
on,  39-40;  present  qualifications, 
40-44;  disqualifications,  44; 
effect  of  various  qualifications, 
44-45;  election  districts,  45-46; 
in  cities,  364,  394-3P7 

Sumter,  South  Carolina,  city-man- 
ager plan  adopted.  446 

Supremacy,  federal,  16-17;  of  the 
Constitution,  17;  of  law,  23; 
legislative,  in  state  constitutions, 
27 ;  over  cities,  363 

Supreme  Court  of  the  United 
States,  on  the  police  power,  15, 
239;  as  court  of  appeal  from 
state  courts.  276-277;  power  to 
declare  statutes  unconstitutional, 
301-302 

Survey  as  basis  for  city  plan,  494 

Tables,  of  members,  terms,  sessions, 
and     salaries     ol     state     Icgisla- 


INDEX 


579 


tures,  204-205 ;  of  state  revenue 
receipts,  226;  of  state  govern- 
mental-cost payments,  230;  of 
urban  and  rural  population,  347  ; 
of  municipal  expenditures,  544 

Tacoma,  Washington,  election  of 
fiscal  officers  under  commission 
government,  438  n. ;  revenue  from 
public-service  enterprises,  534  n. 

Tammany  Hall,  organization  and 
influence,  56-58 

Tampa,  Florida,  revenue  from  mis- 
cellaneous sources,  535  n. 

Taunton,  Massachusetts,  amend- 
ment of  charter,  376 

Taxation,  municipal, grant  of  powers 
of,  365 ;  tax  rate  determined  by 
city  council,  416;  chief  source  of 
municipal  revenue,  534 ;  general- 
property,  535-537;  state  income 
tax,  538-539;  on  public-service 
enterprises,  539-540 ;  on  business, 
540;  rate  of,  540;   collection  of, 

540-541 

Taxation,  state,  restrictions  of 
Federal  Constitution  on,  9-10; 
of  instruments  of  the  federal 
government,  10 ;  effect  on,  of 
federal  power,  14;  kinds,  225- 
230;  general-property,  225-227, 
535-537;  income,  227-228,  538- 
539;  inheritance,  228;  corpora- 
tion, 228-229;  business,  229; 
limitations  on,  229-230;  subjec- 
tion of  private  property  to,  249 ; 
levied  or  collected  by  counties, 
3i9>  323,  330;  valuation  of 
property  for,  by  assessors,  of 
counties,  330;  lev'ied  or  collected 
by  treasurers  or  by  constables  in 
towns,  336,  337  ;  of  New  England 
towns,  336;  by  township  boards 
in  central  states,  337;  payment 
of,  as  suffrage  qualification,  397 

Taxpayer's  suit,  235 

Teachers  in   the   schools,    175-176, 

525-527 
Tennessee,  amendment  of  consti- 
tution, 32;  constitutional  con- 
vention, 32;  power  of  legislature 
over  militia,  144-145 ;  appoint- 
ment of  auditor,  153  n.;  term  of 
legislature,  203 ;  jurisdiction  of 
county  courts,  271,  326;  early 
local  government,  314;  organi- 
zation of  county  boards,  322; 
local  assessors,  330  n.;   civil  dis- 


tricts, 340;  payment  of  poll  tax 
required  for  voting,  397 

Term,  of  governor,  20,  133  ;  of  state 
legislatures,  203 ;  of  state  legis- 
latures, table  of,  204-205 ;  of 
judges,  281-282  ;  of  town  officers, 
335>  336;  of  colonial  mayors, 
360;  of  city  councils,  411;  of 
mayors,  421-422;  of  commis- 
sioners in  commission  govern- 
ment, 434;  of  heads  of  adminis- 
trative departments,  460-461;  of 
school-teachers,   526 

Texas,  area,  4;  amendment  of  con- 
stitution provided  for  by  consti- 
tutional convention,  32 ;  direct 
primaries,  68  n. ;  administrative 
consolidation,  165;  Rangers,  171; 
debt  restrictions,  235 ;  popula- 
tion of  smallest  county,  318; 
precincts  in,  340 ;  special  statutes 
relating  to  cities  forbidden,  370; 
municipal  home  rule,  3S4,  447 ; 
extension  of  franchise  to  non- 
citizens,  394;  payment  of  poll 
tax  required  for  voting,  397 ;  re- 
call in  cities,  408;  city-manager 
plan  may  be  adopted  under 
home  rule,  447 

Textbook,  campaign,  80 ;  in  schools, 

175 

Thorpe,  F.  N.,  Federal  and  State 
Constitutions,   18  n. 

Tocqueville,  Alexis  de,  on  the  ac- 
tion  of  juries,  304-305 

Tonnage,  states  may  not  tax,  10 

Torrens  system  of  land  registra- 
tion, 331 

Torts,  definition,  251-552,  256-257  ; 
varieties,  257-259;  liability  of 
county  for,  318-319;  liability  of 
city  for,  378 

Town,  in  New  England,  units  for 
legislative  representation.  201 ;  as 
administrative  unit  in  England, 
310;  in  New  England  colonies, 
312;  in  the  middle  colonies,  312- 
313;  in  New  England,  definition 
and  characteristics  of,  333-334 ; 
town  meeting,  334-335;  select- 
nien,  335;  town  clerk,  assessors, 
treasurer,  and  school  committee, 
336;  justices  of  the  peace,  336- 
337;  others,  337 

Township,  in  central  states,  337- 
339;  definition  and  characteris- 
tics, 337;  meetings,  337-338;  of- 


58o      STATE  AND  ^MUNICIPAL  GOVERNMENT 


ficers,   338-339;    justices   of   the 

peace,  339;   school  districts,  339 
Train,  Arthur,  The  Prisoner  at  the 

Bar,  288  n. 
Transportation    systems    in    cities, 

520 
Treason,  252 
Treasurer,  state,  152-153;   county, 

330-33^;  town,  336;  in  colonial 

boroughs,  361 
Trenton,  New  Jersey,  chartered  as 

colonial  borough,  313  n.,  360 
Trial,  in   criminal  cases,   292-295; 

in  civil  cases,  296-297 
True  bill,  287  n.   See  Indictment 
Tso-Shuen     Chang,     History     and 

Analysis  of  the  Commission  and 

City  Manager  Plans,  445  n. 

United  States  Congress,  Judiciary 
Act  of  1916,  276,  284;  Immigra- 
tion Act  of  1913,  356 

United  States  Department  of  Com- 
merce, Bureau  of  the  Census, 
Financial  Statistics  of  States 
(1919),  230,  235  n.;  Financial 
Statistics  of  Cities,  373  n.,  479  n., 
484  n.,  489  n.,  499  n.,  50°"-, 
Sion.,  51711.,  529  n.,  533.  534  n., 
535  n.,  540  n.,  542  n.,  543  "-, 
548  n.,  549  n. ;  Comparative  Fi- 
nancial Statistics  of  Cities  under 
Council  and  Commission  Gov- 
ernment, 1013  and  1915,  431  n., 
443  n. ;  General  Statistics  of  Cities 
(1915),  507  n. 

United  States  Provost  Marshal 
General,  Second  Report  on  Op- 
erations of  the  Selective  Serv- 
ice System,  355  n. 

Universities,  state,  176 

Utah,  adopts  woman  suffrage,  40; 
limitation  on  legislative  action, 
135  ;  term  of  legislature,  203  ;  size 
of  Senate,  203 ;  executive  budget 
in,  234;  municipal  home  rule, 
384  n. ;  commission  government 
for  cities,  432 

Vermont,  single-chambered  legisla- 
ture, 21  n.;  amendment  of  con- 
stitution provided  by  constitu- 
tional convention,  32;  absent 
votins,  09 ;  majority  vote  re- 
quired for  election  of  governor, 
133;  administrative  consolida- 
tion, 173;  representative  districts, 


201 ;  cities  under- represented, 
202;  county  courts,  271;  ap- 
pointment of  higher  judges, 
278  n.;  term  of  judges,  281; 
election  of  county  judges,  325; 
appointment  of  county  clerks, 
329; appointment  of  county  treas- 
urers, 330  n.;  no  commission- 
governed  cities,  432 

Veto,  power  of  the  governor  in 
early  constitutions,  21;  on  direct 
legislation,  122;  on  legislative 
measures,  136-139,  220;  on  sep- 
arate items,  137-138;  extent  and 
influence,  138-139 ;  as  limitation 
on  legislature,  196;  power  of  the 
courts,  301-302,  304;  no  power 
of,  by  mayor  in  colonies,  360; 
development  and  present,  363, 
364-365,  368,  370,  425;  merits, 
425-426;  in  commission  govern- 
ment, 436,  437 

Villages,  definition,  341 ;  functions, 
organization   and   officers,  342 

Virginia,  early  constitution  framed 
by  convention,  20;  no  amend- 
ment provided  in  early  constitu- 
tion, 20;  election  of  judges,  21; 
separation  of  powers,  24;  Bill 
of  Rights,  24,  28;  constitutional 
conventions  in,  34;  early  suf- 
frage qualifications,  39;  later 
suffrage  qualifications,  41,  42; 
item-veto,  138;  appointment  of 
board  of  education,  173;  ap- 
pointment of  higher  judges, 
278  n.;  early  parish  and  county, 
310-31 1,  314;  coincidence  of 
city  and  county  boundaries,  318; 
organization  of  county  boards, 
322;  election  of  county  judges, 
325;  magisterial  districts,  340; 
optional-charter  system,  382, 
432-433 ;  suffrage  conditioned  on 
residence,  395 ;  suffrage  condi- 
tioned on  property  and  payment 
of  poll  tax,  307 

Voters.   See  Electorate 

Waco,  Texas,  salary  of  mayor  and 
commissioners,  435,  436 

Washington,  D.  C,  growth  from 
political  forces,  345;  street  area, 
496;  source  of  water  supply, 
508;  water  purification  in,  508; 
revenue  from  miscellaneous 
sources,  534 


INDEX 


581 


Washington,  suffrage  qualification 
in,  42 ;  effect  of  suffrage  quali- 
fication, 45 ;  nonpartisan  pri- 
maries adopted,  67 ;  circulation 
of  initiative  and  referendum  peti- 
tions, 112;  legislature  may  not 
immediately  change  direct  leg- 
islation, 122;  recall,  126,  127; 
item-veto,  138;  municipal  home 
rule,  384,  447 

Waste  disposal,  municipal,  impor- 
tance, 511;  ashes  and  rubbish, 
512;  refuse,  512-513;  garbage, 
513;  sewage,  513-517 

Watchers  at  the  polls,  90 

Water  supply,  in  cities,  construc- 
tion of  Croton  aqueduct  for  New 
York  City,  365;  development, 
367,  373;  importance,  505;  req- 
uisites, 505-507 ;  sources,  507- 
508;  purification,  508-509;  de- 
partments, 509-510;  finance  and 
rates,  510-511 

Wealth,      estimated,      of      various 

Weber,  A.  F.,  Growth  of  Cities, 
345  n.,  348  n-.  351  "v  352  n., 
353  n.,  354  n.,  357  "-,  358  n. 

West  Hoboken,  New  Jersey,  area 
and  population,  346;  revenue 
from  miscellaneous  sources,  535  n. 

West  Virginia,  governor's  power  of 
removal,  143 ;  jurisdiction  of 
county  courts,  271,  326;  magis- 
teriaUdistricts,  340;  special  stat- 
utes relating  to  cities  forbidden, 
370;  residence  requirement  for 
voting,  395 

Whipple,  G.  C,  Value  of  Pure 
Water,  505  n.,  507  n. 

White,  F.  H.,  "Growth  and  Future 
of  State  Boards  and  Commis- 
sions," 154  n-,  iSSn- 

Wichita,  Kansas,  revenue  from 
special  assessments,  534  n. 

Wilcox.  D.  F.,  Government  by  All 
the  People,  105  n. ;  The  Great 
Cities  of  America,  The  Ameri- 
can City,  345  n. 

Willoughby,  W.  F.,  The  Movement 
for  Budgetary  Reform  in  the 
States,   232  n. 

Willoughby,  W.  W.,  The  Constitu- 
tional Law  of  the  United  States, 
13  n.,  146  n. 


Wilmington,  Delaware,  revenue 
from  miscellaneous  sources,  535  n. 

Winston-Salem,  North  Carolina, 
school  expenditures,  528 

Wisconsin,  disqualification  for  vot- 
ing, 44  n. ;  requirement  for  use 
of  preferential  ballot  in  party 
elections,  73 ;  regulation  of  cam- 
paign expenses,  87 ;  term  of 
governor,  133 ;  secretary  of  state 
acts  as  auditor,  153  n.;  removal 
of  county  officers  by  governor, 
169  n.;  count}'  superintendent  of 
education,  172-173;  regulation 
of  public  utilities,  192 ;  attitude 
of  courts  toward  legislative  ap- 
portionments, 203 ;  regulation  of 
lobby,  215-216;  legislative  refer- 
ence department,  216;  county 
boards,  321;  removal  of  sheriffs 
by  governor,  328;  township  of- 
ficers, 338;  villages,  341;  munici- 
pal home  rule,  384  n.;  extension 
of  franchise  to  noncitizens,  394 ; 
residence  requirement  for  voting, 
395 ;  term  of  city  commissioners, 

434 

Wisconsin  Legislative  Reference 
Department  established  to  sup- 
ply information  formerly  fur- 
nished by  lobbies,  216 

Woman  suffrage,  spread  of  move- 
ment in  the  states,  40 ;  adoption 
by  federal  amendment,  41;  rea- 
sons for,  41 

Woonsocket,  Rhode  Island,  foreign- 
born  population,  349 

Worcester,  Massachusetts,  disposal 
of  garbage,  513;  disposal  of 
sewage,  515 

Workers,  party,  who  they  are,  58 ; 
expenses,  82 

Workmen's  compensation  laws, 
1S6-187 

Writs,  kinds  of,  issued  by  the  courts, 
266-267,  295,  297,  298-209 

Wyoming,  density  of  population, 
5 ;  vote  required  for  amendment 
of  constitution,  32;  woman  suf- 
frage, 40 ;  suffrage  conditioned  on 
literacy,  42  ;  publicity  pamphlets. 
Son.;  suffrage  conditioned  on 
residence,  395 

Zoning  ordinances,  500-501 


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